



**o« 





\U V^ < « « S ^ > >. », 



<. 



r oV 




r *& 



^°* 



*<*o* 



' o u* fJ 



X<? : 






s , 






v.^ 









*W 









♦♦*% 








»>"*, 





%^-y .. v 

<. -...• .0*" V ^T* A <, -...* .0* 












*^o* 



» ^ 




<° ** 




_ 



- 



A COMPILATION 

OP THE ^S^ 

LAWS OF ILLINOIS, 

BELATING TO 

TOWNSHIP ORGANIZATION 



AND 



MANAGEMENT OF COUNTY AFFAIKS 



Numerous Forms, and NoT& of Instruction, 



SUPPORTED BY ADJUDICATED CASES, OPINIONS OF THE ATTORNEY GENERAL 
AND RULINGS OF THE AUDITOR OF PUBLIC ACCOJ 



WITH AN APPENDIX. 



'4? 



s* 



\ OF CONfffl, 



x^-w 



DEPASTMEST. 



BY ELIJAH M. HAlNEsNfe^ 



rf 



COUNSELOR AT LAW. 

Compiler of Township Organization Laws of Wisconsin, Michigan, Missouri and Minnesota, and 
Author of the Probate Manual, and a Treatise for Justices of the Peace, Etc. 



TWENTY-FIRST EDITION. 

Revised in accordance with the legislation of 1897 by Andre Math 



of the Illinois Bar. 



CHICAGO: " CV V^ 3 ^ 

The Legal Adviser Publishing Company," 

1897. 




- 






Entered according to act of Congress, in the year 1697, dj 

THE LEGAL ADVISER PUBLISHING CO. 

ma the office of the Librarian of Congress, at Washington, D. C, 



PREFACE TO EDITION OF 1895. 

A large number of amendments, alterations and additions to the laws 
relating to township administration have been made by the legislation 
of this year. We may specify the more important of these changes. 

Township organization laws. — (1) Section 1 of article 3 is amended 
by abolishing the requirement of fifty resident electors for the organiza- 
tion of a new township and requiring a petition signed by not less than 
three-fourths of all the resident electors, (p. 41, 42.) 

(2) Section 16 of article 1 is amended so as to require the division of 
each township in three road commissioners districts and the election of 
one commissioner in each district, (p. 38.) 

Road and bridge laws. — (3 ) A new act gives to highway commis- 
sioners authority to construct side-walks in villages not incorporated, 
(p. 123, cl. 6a.) 

(4) An amendment to section 11 confers on the township electorate 
power to abolish the poll tax. (p. 132.) 

(5) A new act makes it the duty of the highway commissioners, un- 
der penalty, to cause the destruction of all noxious weeds in public 
highways, (p. 222.) 

(6) An amendment to 1[ 143 (§ 15 hard roads act) gives to commis- 
sioners power to condemn land for materials, in case parties can not 
agree on damages, (p. 231.) 

(7) An act in relation to obstructing travel on highways, sanction- 
ing penalty for same, (p. 201, H79a.) 

Drainage laics. — (8) New sections 15a and 15b provide for the elec- 
tion of drainage commissioners in each district, relieving highway com- 
missioners from the duties of this office, (pp. 248, 249.) 

(9) A new act authorizing all drainage districts to issue bonds, etc. 
(pp. 297, 298.) 

(10) An act providing for abatement of assessments when in excess 
of indebtedness, (p. 299.) 

Fence laws. — (11) An amendment to \ 14 in relation to fencing and 
opernting railways, (p, 325, \ 14.) 



12 PREFACE. 



Township insurance laws. — (12) An act authorize consolidation 
of township insurance companies, (p. 349.) 

Revenue laws. — (12) An act prescribing rules for listing stock in 
homestead, building and loan associations. (H1[ 29a, 29b, 29c, 29d, pp. 
364, 365.) . 

(13) An amendment to \ 185 providing that all applications for 
judgment and orders of sale for delinquent taxes, etc., shall be made at 
the June term of the county court, (p. 419.) 

(14) An amendment to § 126, permitting application for judgment 
for delinquent taxes to be made at May term of county court in coun- 
ties where probate courts have been established, (p. 420.) 

(15) An amendment to \ 202 requiring bids to be for least per cent- 
age of penalty, (p. 428.) 

(16) An amendment to I 210 relating to terms of redemption from 
sale for taxes, (pp. 429, 430. 

(17) An amendment to \ 213 relating to sales in error, (p. 431.) 

Laws of animals. — This division, which in preceding editions fol- 
lowed that of counties, has been placed after that of revenue and in- 
cludes the dog and sheep law. 

(18) A new act in relation to domestic animals prohibits allowing 
such animals to run at large anywhere at any time in this state, and re- 
peals all laws inconsistent therewith, (pp. 464, 465.) 

(19) A new act to prevent the spread of infectious diseases among 
swine, (p. 466.) 

Election laws. — The official ballot act will be found in the division 
of elections in this edition. 

(20) An amendment to I 63 fixing the compensation of inspectors 
and clerks of elections, (p. 480.) 

(21) An amendment to I 97 in relation to jurisdiction of election 
contests, (p. 493,) 

(22) An amendment to I 116 giving preference to trial of election 
contests in term time or in vacation, (p. 496.) 

Of all the amendatory legislation affecting the township law since its 
enactment in 1851, the act of 1889, to amend section 7 of article 7, is 
the most remarkable. It provides for the division of townships having 
more than 400 electors into precincts; for the appointment (by the 
county board) of three judges of election in each precinct, and consti- 



PftEFACtf. 13 



tutes these officers a canvassing board for the precinct, requiring them to 
count the votes and make return thereof to the township clerk, <■ ' in the 
manner provided in the general election law." It creates a township 
canvassing board, composed of the supervisor, assessor and collector. 
It provides that the "town meeting" shall be held at 2 p. m. , and that 
"a moderator shall be chosen to preside," by the electors then present. 
Thus, it separates the election of township officers from the "town 
meeting, " and assimilates the former to an election of county or state 
officers. 

A consequence of this separation of the township election from the 
1 ' town meeting " is the restriction of the office of the latter to that of a 
local parliament of the people assembled to exercise the legislative facul- 
ties conferred by the township law. The moderator, being no longer in 
any sense a judge of election, is yet, as he always has been, the presid- 
ing officer of this township parliament. 

Another effect is to make obsolete a number of sections of the town- 
ship law. In this edition of Haines' Township Laws, these obsolete 
provisions are distinctly indicated. 

The peculiar features of this work are: 1. It presents all the statute 
law on the subject of township organization, or that has any connec- 
tion therewith — collected together in one volume — in methodical and 
convenient form for reference. 2. It gives a full and complete collec- 
tion of forms for procedure under the law. 3. It gives, by way of 
notes, full instructions in regard to every branch of the law, clearly 
expressed and supported by reference to judicial decisions. 4. It pre- 
sents the law, the forms, and the notes, where they relate to a given sub- 
ject, on the same page, and in immediate connection. It is this arrange- 
ment which contributes largely to giving the work its great value as a 
useful and indispensable book for all public officers under the township 
organization system; and the important matter it contains renders it 
valuable, not only for public officers and the legal profession, but for 
every citizen and taxpayer in the state. 

It has been the endeavor of the compiler to explain, in the notes to the 
text, every apparent ambiguity in the law, and give as full instructions 
on doubtful points as the light of judicial determination would warrant. 

A valuable feature of this compilation is the addition, in the appendix, 
of a brief summary of the rules of parliamentary law, for the benefit of 



14 PREFACE. 



town meetings and boards of supervisors. Efficiency can never be 
expected in any deliberative body where parliamentary rules are dis- 
regarded. Hence, a proper understanding of these rules is important to 
every member of the board of supervisors and every elector who expects 
to attend and take part in the town meeting. 

Chicago, September, 1895. 



EDITION OF 1897 

The following alterations and amendments of the statutes relating to 
townships and township affairs have been made by the legislation 
of 1897: 

Roads and bridges act. — (1) An amendment to §30, relating to 
the width of public highways, (p. 149.) 

(2) An amendment to §31, relating to altering, widening, vacating 
and laying out roads, (p. 150.) 

(3) An amendment to §32, relating to contents of petition, (p. 151.) 
Drains and ditches acts. — (4) An amendment to §2 requiring 

drainage commissions to appoint clerk, (p. 235.) 

(5) An amendment to §15a making every adult owner of land in 
district eligible for commissioner, (p. 248.) 

(6) An act for the protection of drains, ditches, etc. (p. 304.) 
Animals. — (7) An amendment of §5 and §6, dog and sheep act, 

transferring procedure from justice to supervisor, (p. 462.) 

Election laws. — (8) An amendment of §33 relating to appointment 
of inspectors, (p. 473.) 

(9) An amendment of §3. official ballot act, relating to nominations, 
(p. 508.) 

(10) An amendment of §8, off. bal. act, relating to withdrawal of 
nominees, (p. 509.) 

(11) An amendment of §19, off. bal. act, relating to specimen bal- 
lots, (p. 514.) 

(12) An amendment of §27, off. bal. act, relating to return of voting 
papers, (p. 518.) 

Chicago, August, 1897. 



TABLE OF CONTENTS. 



DIVISION I. 
Township Organization Act 33-114 



Article 


I. 


Article 


II. 


Article 


III. 


Article 


IV. 


Article 


V. 


Article 


VI. 


Article 


VII. 


Article VIII. 


Article 


IX. 


Article 


X. 


Article 


XI. 


Article 


XII 


Article XIII. 


Article XIV. 


ARTICLE 


XV. 



83-39 
40-41 



41-49 



49-63 
64-66 
66-71 

.. 71-79 



How township organization adopted 

How discontinued 

Of the alteration of boundaries, and division of towns 

and town property 

Corporate powers of towns, and the exercise thereof, — 
what may be done at town meetings— by-laws, rules 

and regulations „ 

Legal proceedings in favor of and against a town 

Town meetings— judges of election 

Town officers elected by ballot— mode of conducting 

election for town officers 

The mode of conducting town meetings for the transac- 
tion of miscellaneous business 79-84 

Qualification and tenure of office 84-88 

Vacancies in town offices and manner of filling them...- 88-91 

The supervisor and his duties 92-97 

The town clerk and his duties 97-98 

The board of town auditors 99-102 

Board of health ~~ 103-104 

The compensation of town officers 101-106 

Cities organized as towns in certain cases 106-107 

Canada thistles 109-112 

Publication of annual statements 113-114 



DIVISION II. 
Roads and Bridges , 115-22/s 

Public highways defined 115 

Duties of commissioners of highways 116-137 

137-1 



Bridges. 



-149 



Laying out roads 149-159 

Altering, widening, vacating roads 150-159 

Damages and assessment 159-175 

Roads for private and public use 176-179 

Town and county line roads 179-182 

Road appeals 183-190 

Town, county and State line roads 191 

Compensation of commissioners— penalties 191 

Law of the road— regulations and penalties 192-200 

Labor system ~ 201-222 

Destruction of noxious weeds 222-223 



16 TABLE OF CONTENTS. 



Roads and Bridges. Continued. 

Plats of highways to be recorded 223 

Effect of vacating property 223-224 

Railroad tracks upon highways 224 

Gravel, rock and macadam— hard roads 225-232 

Steam engine, use of, on highways and bridges 233 

DIVISION III. 

Drains and Ditches 235-304 

Drainage for agricultural and sanitary purposes 235-341 

Rights of drainage— riparian rights 236 

Drainage through land of another 237 

Drainage ; combined system 241 

Union districts 274 

Special drainage districts 275 

River districts 293 

Districts by user 293 

Districts by mutual agreement 294 

County ditches to drain swamp lands 296-303 

DIVISION IV. 

Fences 305-318 

Fencing Railroads 319-326 

Hedge Fences 327-328 

DIVISION V. 
Paupers 329-341 

Support of the poor 329-339 

Residence, for purpose of voting 340 

Separate support— poor house 340 

Tuition of pauper children 341 

DIVISION VI. 
Township Insurance Companies 343-348 

DIVISION VII. 
Revenue 349 

Property liable for taxation 349-350 

Property exempt from taxation 351-353 

Rules for valuing personal property 353-354 

Rules for valuing real estate 355 

Personal property, when listed 355 

Who shall list and what listed 356-357 

When listed and assessed, and what, held to be personal property — manner 

of listing 357-361 

Form of schedule 361-363 

Rules for listing credits 363-364 

Rules for listing and valuing the property and business of banks, bankers, 

brokers and stock jobbers 364-365 

Pawn broker 365 

Listing capital stock of corporations and franchises of persons 365-367 

State and national banks 367-369 

Manner of listing and valuing the property of railroads 369-373 



TABLE OF CONTENTS. 17 



Revenue. Continued. 

Telegraph companies— return 873-374 

Penalty ~. „. 374 

Real property— as of what time listed— who liable for tax 374-375 

Sub-dividing. 375 

How listed as between counties - 376 

How listed as between towns 377 

Making and delivery of assessment books and blanks 877-379 

Appointment of assessors and deputy assessors 379-380 

Oath and duties of assessors— assessment of real and personal property 380-383 

Review of assessment by town board 383-384 

Return of assessor to county clerk 384-386 

Pay of assessors and deputy assessors 386 

Duties of clerk on return of assessment books 387 

Equalization of assessments by county board 387-389 

Report of assessment by clerk to auditor, for equalization «. 389-390 

State board of equalization 390-395 

Rates of taxation 395 

For state purposes m 395 

For county purposes _ 397 

Towns, cities, etc 397 

Collector's books extending rates 398-400 

Qualification of town and district collectors 400-401 

Delivery of collector's books— warrants „ 401-403 

Collection district and who collectors in counties not under township 

organization „ 403 

Tacancies and resignations 403-404 

Collectors .*. 404-407 

Manner in which taxes are to be collected 407-412 

8\rorn statements of collections to be made— payments 412-413 

Return of town and district collectors to county collector 413-415 

Return of delinquent special assessment 415 

County collector's receipts — powers 416-417 

Advertisement for judgment and sale 417-422 

Judgment — _ 422-425 

Sale of delinquent lands „ 425-429 

-Jartified copy of lists to be sent to auditor _ ' 429 

Redemption _ 429-432 

Tax deeds ,. 432-436 

Forfeited property 436-438 

Final settlement of county collector 438-440 

Partial settlement of county collector » 440-441 

Final settlement of the county collector for state taxes 441-443 

Lien of taxes 443-444 

Who not eligible as bondsman 445 

Liability on bonds M 445 

Suits against collectors 445-447 

Sale of real estate on execution in behalf of state — redemption „. 447 

Double payment and assessment — refunding 448 

When records aro destroyed 449 

Other duties of auditor 449-451 

Omitted properly — saving clauses 451-453 

WTio may administer oaths 453 

Penalties of officers 453-454 

Cteanty to furnish books and blanks _ 454 

County funds — manner of keeping account thereof. 455-456 

Definitions 456-457 



18 TABLE OF CONTENTS. 



Revenue — continued. 



Repealing clause 458 

3ridges on border of state — how assessed 458 

Agricultural and other statistics 458 — 460 

DIVISION VIIa. 
Animals 460-467 

Dog and sheep law ; 460—463 

Domestic animals 464—465 

Estrays 465— 4G6 

Diseases among swine 46? 

DIVISION VIII. 

Elections 467-506 

Electors of president and vice president of the United States 467-468 

Time of holding elections for certain officers 46S-472 

Election precincts 472 

Judges and clerks of election 472-473 

Oath of judges and clerks of elections 473 

Ballot boxes and poll books 474 

Constables appointed to attend— preservation of order 474 

Notice of election 475-476 

Conducting elections— returns , 476 481 

Qualification of voters 481-483 

Canvassing votes— certificate of election 484-487 

Offenses and penalties 487-492 

Contesting elections 492-497 

Resignations and vacancies 498-501 

Registration of electors ; 501-506 

The legal voting-paper act 507—520 

Women may vote for school officers 520 

DIVISION IX. 
Counties 521-545 

Boundaries and jurisdiction 521 

Alteration of county lines 521—523 

New counties 523—527 

Of the powers and duties of counties and county boards 527—539 

Provisions specially applicable to the board of county commissioners in coun- 
ties not under township organization 539—540 

Provisions specially applicable to the board of supervisors in counties under 

township organization 540—543 

Classification of counties 543 — 544 • 

County clerks 544—545 

APPENDIX. 

General Notes 563-570 

Parliamentary Law 570-578 

Index 579-622 



HAINES' TOWNSHIP LAWS 



LAWS OF ILLINOIS, 

RELATING TO 

Township Organization 



AND 



Management of County Affairs. 



DIVISION I. 

TOWNSHIP ORGANIZATION ACT. 

AN ACT to revise the law In relation to township organization. [Approved and in force March 
4th, 1874. Rev. Stat., Ch. 139.] 

AETICLE I. 

HOW TOWNSHIP ORGANIZATION ADOPTED. 
Section. 

1. At general election. 

2. Petition. 

3. Returns. 

4. When township government to commence — Majority vote denn&d. 

5. Commissioners appointed. 

6. Division of county into towns. 

7. Naming of towns. 

8. Report of commissioners. 

9. Abstract of report sent to auditor — Record. 

10. Where names are alike. 

11. Auditor's record of names, etc. 

12. First town election. 

13. Notices of first town election. 

14. Conducting election. 

15. Justices and constables. 

16. Commissioners of highways. 

17. Refusal to organize— Second election. 

18. Continued refusal to organize. 

19. Failure to qualify. 

20. Part of county not organized. 

1. At general election.] § 1. That at any general election 
that may be holden in the several counties in this state, ths 
3 



34 TOWNSHIP ORGANIZATION ACT. [DIV. L 

qualified voters in any county may vote for or against township 
organization in such county. (1) [L. 1861, p. 216, § 1. 

2. Petition.] § 2. The county board, on petition of fifty or 
more legal voters of said county, shall cause to be submitted to 
the voters of the county the question of township organization 
under this act, by ballot, to be written or printed, or partly 
written and partly printed, "For township organization" or 
"Against township organization," to be canvassed and returned 
in like manner as votes for county officers. (2) [L. 1861, p. 
216, §2. 

3. Returns.] § 3. The county clerk shall enter an abstract 
of the returns of said election, to be made out and certified as in 
elections for county officers, record the same at length upon the 
records of the county, and shall certify the same to the auditor 
of public accounts. [L. 1861, p. 216, § 3. 

(1) The Constitution concerning township organization, Art 10, provides: 

Sec. 5. The General Assembly shall provide, by general law, for township organization, under 
which any county may organize whenever a majority of the legal voters of such county, voting 
at any general election, shall so determine, and whenever any county shall adopt township or- 
ganization, so much of this Constitution as provides for the management of fiscal concerns of 
the said county by the board of county commissioners may be dispensed with, and the affairs of 
said county may be transacted in such manner as the General Assembly may provide. And in 
any county that shall have adopted township organization, the question of continuing the same 
may be submitted to a vote of the electors or such county at a general election, in the manner 
that now is or may be provided by law; and if a majority of all the votes cast upon that ques* 
tion shall be against township organization, then such organization shall cease in said county; 
and all laws in force in relation to counties not having township organization, shall immedi- 
ately take effect and be in force in such county. No two townships shall have the same name, 
and the day of holding the annual township meeting shall be uniform throughout the State. 

Sec. 6. At the first election of county judges under this Constitution, there shall be elected in 
each of the counties m this State, not under township organization, three officers, who shall be 
styled "the board of county commissioners," who shall hold sessions for the transaction of 
county business as shall be provided by law. One of said commissioners shall hold his office 
for one year, one for two years, and one for three years, to be determined by lot; and every year 
thereafter one such officer shall be elected in each of said counties for the term of three years. 

Sec. 7. The county affairs of Cook county shall be managed by a board of commissioners of 
fifteen persons, ten of whom shall be elected from the city of Chicago, and five from towns out- 
side of said city, in such manner as may be provided by law. 

(2) Form, of Petition to County Board for Township Organization. 

To the honorable the county board of the county of , State of Illinois: 

The undersigned, legal voters of said county of •, would respect- 
fully represent, that in their opinion the people of said county desire to 
adopt township organization : they do therefore petition your honorable 
board to cause to be submitted to the voters of said county, at the next 
general election, to be held on the first Tuesday after the first Monday in 
November next, the question of township organization, that they may 
vote upon the adoption thereof. 

And your petitioners will ever pray. 

Dated this day of , A. D. 18—. 

The power to hold elections for adoption of* township organization Sows from 
the action of the county board. It is not vested in the clerk or other officer; their acts, unau- 
thorized, would confer no power to hold an election; but when the body has acted who possess 
the power, and the officer acting under their requirements give the notice, then the authority of 
the law has been invoked and properly put into action. The statute does not require the ord«r 
of the county board, submitting the question of township organization to a vote of the people, 
to be spread on the record. If this is neglected, the subsequent action of the county board to 
that effect sufficiently proves the making of such order. The neglect of the clerk to enter tha 
order should not have the effect to defeat the will of the people. People exreL v . Qarncr, 47 I1L 
R., 247. 



ART. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 35 

4. When township government commences — Majority vote 
defined.] § 4. If it shall appear by the returns of said election 
that a majority of the legal voters of said county are for town- 
ship organization, then, the county so voting in favor of its 
adoption shall be governed by and subject to the provisions of 
this act on and after the first Tuesday of April next succeeding : 
Provided, that a majority of the voters voting at such election 
shall be taken and deemed a majority of the voters of said 
county. (1) [L. 1861, p. 216, § 4 

5. Commissioners appointed.] § 5. The county board shall, 
at its next session, appoint three commissioners, residents of 
the county, to divide the county into towns. The commissioners 
so appointed shall be paid for their services by the county. (2) 
L. 1861, p. 216, § 5. 

6. Division of county into towns.] § 6. The commissioners so 
appointed shall proceed to divide such county into towns, mak- 
ing them conform to the townships according to government sur- 
veys. Fractional townships may be attached to adjoining towns, 
where the number of the inhabitants or the amount of territory 
thereof shall not be sufficient for a separate town. Where a 
township shall have too few inhabitants for a separate organiza- 

(1) The right of a county to adopt township organization, tinder the provisions of 
our Constitution, is expressly made to depend upon an affirmative vote of a majority of all the 
citizens within the county entitled to vote on the question. The legislature does not possess the 
power to provide any other mode of township organization than as prescribed by the Constitu- 
tion. The power of the county board over the affairs of the county, continues until the town- 
ship organisation is adopted by an affirmative vote of a majority of all the legal voters of a 
county. People v. Brown et al., 11 111. R., 478. This decision was made under the township act of 
1849! which was substantially the same as this act on the subject in question, except that by this 
act it is provided that a majority of the voters voting at such election shall be taken and deemed 
a majority of the voters of said county ; which is settling the question of evidence, by which to 
determine the majority of legal voters of the county at the time of taking the vote. See also 
People v. Warfieid, 20 111. R., 159. 

A question arises as to the mode of ascertaining "whether a majority of the voters 

of a couuty have cast their votes for township organization. The registry list of voters is no.better 
evidence of the number of legal voters in a district or county than the poll-books. The vote 
cast is prima facie evidence of not only the result of the election, but also of the number of 
legal voters in the county. The registry lists do not rebut or overcome this presumption. Per- 
sons whose names are put upon the registry list, but who do not appear and vote at an election, 
are presumed to have left the election district, and therefore no longer legal voters therein. 
The People ex rel. v. Garner, 47 111. R., 247. 

The legislature has no power to impose a general township organization upon 
the people of a county, in any other manner than that provided in the Constitution (see People 
v. Brown, 11 111. R., 478), which is by vote of the people. Yet it seems, in the absence of any 
prohibition, the legislature may provide for the incorporation of a town for municipal purposes 
six miles square in extent, as well as a village with less territory. Oreeley et al. v. The People, 60 
111. R., 19. 

(2) Ther* 1b no appeal from the order of the connty hoard in declaring township 
organization adopted, or in appointing commissioners to divide the county into towns. The law 
in regard to appeals from orders of that board does not apply to that case. Where the question 
of township organization was submitted and declared adopted, and commissioners appointed to 
divide the county into towns, but no action was had, and the matter was again submitted after 
the lapse of several years, and it was again declared in the affirmative, and commissioners, to 
divide the county into towns, were again appointed who performed their duties, and the county 
organized accordingly: Held, that the proceeding was valid. That if the last election was in- 
Talid the commissioners would be regarded as being appointed under the first vote, which 
would be reearded as still in force for that purpose, notwithstanding the lapse of time and the 
second submission. People ex rel. y. Garner, 47 HI. R., 247. 



36 TOWNSHIP ORGANIZATION ACT. [DIV. L 

tion, then such township may be added to some adjoining town, 
or divided between two or more towns, for the time being. And 
when a creek or river so divides a township that it is inconven- 
ient for transacting town business, then such creek or river may 
be made the town boundary, and the fractions so formed may be 
disposed of as other fractional townships. (1) [L. 1861, p. 217, § 6. 

7. Naming of towns.] § 7. Towns shall be named in accord- 
ance with the express wish of the inhabitants of the town, and 
if there shall not be a degree of unanimity as to the name, the 
commissioners may designate the name: Provided, that the 
county board shall have power to change the name of any town 
in their respective counties, upon a petition of a majority of the 
vofers of said town: And, provided further, that no two towns 
in the state shall have the same name. [L. 1861, p. 217, § 7 ; L. 
1859, p. 129, § 1. ' 

8. Report of commissioners.] § 8. The commissioners so ap- 
pointed shall make a written report of their proceedings, giving 
the names and bounds of each town, and present such report to 
the county clerk on or before the first day of March next suc- 
ceeding.^) [L. 1861, p. 217, § 8. 

(1) In the division of a county into towns by the commissioners, It is the inten- 
tion of the law that it shall be made in accordance with the lines of the surveyed or govern- 
ment townships so that each government township shall be set off and erected as an organized 
town under this act, and it is the duty of the commissioners to divide the county accordingly; 
it would seem that they have not authority to divide it otherwise. The instances where they 
can depart from this rule are clearly expressed in the above section. The powers of the board 
of supervisors subsequently to create new towns and change town boundaries, are not thus re- 
stricted. See Art. Ill, S 1, post. 

In dividing the county into towns the law has laid down a rnle to De observe'd. 

1 f the commissioners depart from what is believed to be the intention of the law, and exceptions 
are taken to their report on return, the county board would perhaps have power to reject it, and 
recommit the matter for further action of the commissioners. If this is not done the report will 
be regarded as regular, and no question can thereafter be raised to defeat it in that regard. Peo- 
ple ex reL v. Garner, 47 111. R. 247. 

(2) Form of Report of Proceedings of Commissioners appointed to Divide 

County into Towns 

To the honorable the county board of the county of , State of Illinois. 

The undersigned, commissioners appointed by said board, at the De- 
cember term thereof, A. D. 18 — , to divide said county of into towns, 

agreeably to the statute to provide for township organization, respectfully 
report that they have performed the duty assigned to them, and have di- 
vided said county into towns, and given names thereto as follows to-wit : 
All that territory known and described by government survey as town- 
ship number — , of range number — , is erected into a town to be called the 

town of . 

All that territory known and described, etc., [continue by describing 
each town as aforesaid.] 
All of which is respectfully submitted. 

A.B.,> 

C. D., > Commissioners, 
E. F., 3 
Town*, although duly described and named by the commis^ae», would ..apttttAfe 



1ST. l] how township organization adopted. 3? 

9. Abstract of report sent to auditor — Record.] § 9. The 

county clerk shall, within thirty days after receiving such report 
of the commissioners, transmit by mail to the auditor of public 
accounts of this state, an abstract of such report, giving the 
bounds of each town and the name designated, and said clerk 
shall record, in a book kept for that purpose, the report of said 
commissioners. [L. 1861, p. 217, § 10. 

10. Where names are alike.] §10. If the auditor of public 
accounts, on comparing the abstracts of the reports from the 
several counties, shall find that any two or more towns are named 
alike, he shall so inform the clerk of the county which last 
adopted such name, and the county board of such county shall, 
at its next meeting thereafter, adopt for such town some different 
name ; and when such name shall be adopted, the county clerk 
shall inform the auditor of public accounts, as before directed. 
[L. 1861, p. 217, § 11. 

11. Auditor's record of names, etc.] §11. The auditor of 
public accounts shall keep a record of the names and bounda- 
ries of the several towns. [L. 1861, p. 218, § 12. 

12. First town election.] § 12. The county board shall, at 
least twenty days before the first Tuesday in April next after the 
adoption of township organization, designate some central and 
convenient place in each town for the holding of the first town 
election, and shall als<! appoint three suitable electors of the 
town as judges of said elections. 

13. Notice of first town election.] §13. The county clerk 
shall thereupon make out notices, stating the time (which shall 
be the first Tuesday of Apri 1 thereafter) and place for holding 
the first town election, and the names of the judges of election 
so appointed, and derive/ such notices to the sheriff of the 
county, who shall cause th<? same to be posted in not less than 
three of the most public piaces of the town, and not less than 
fifteen days before the time of the holding of such election. (1) 
[L. 1861, p. 217, § 9. 

to the full power of such corporations until a completion of their organization by the election 
of town officers. Wells v. Bvrbank, 17 N. Hamp. S,., 393. 

The supreme court will take judicial notice of the fact that a county has adopted 
township organization. Oranly of Rock Island v. Stale, 31 m. K., 543. 

(1) Form of Notice by County Clerk for First Town Election. 

TOWN ELECTION NOTICE. 

Public notice is hereby given that the first town election under town- 
ship organization for the town of , in the county of , and State 

of Illinois, will be held in said town on Tuesday, the day oi April, 

A. D. 18 — , being the first Tuesday in said month, at [give the place dt*iy 



38 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

14. Conducting election.] £ 14. The first town election shall 
be conducted in the same manner as other town elections. 

15. Justices and constables.] I 15- The justices of the peace, 
and constables residing in any town organized pursuant to this act shall 
continue to hold their offices for the time for which they were elected, 
and shall be considered as justices of the peace and constables of such 
town; but if the number of justices of the peace and constables allowed 
by law shall not reside in any such new town, the electors thereof may, 
at the first town election, elect a sufficient number of justices and con- 
stables, who shall hold their offices until the next election at which jus- 
tices of the peace and constables may be elected, as provided by law, 
and until their successors are elected and qualified. (2) 

16. Commissioners of highways.] I 16. Of the commissioners 
of highways elected at the first election one shall hold his office for one 
year and one for two years and the other for three years, to be determined 
between them by lot (3) before entering on the duties of their office and 
until their respective successors are elected and qualified, and it shall be 
the duty of the commissoners of highways, together with the town clerk 
and supervisor, to meet within ten days after the next town meeting after 
the passage of this act in each township and divide each township into 
three districts, to be known as road commissioners districts numbers one, 
two and three, dividing the township as near into three equal divisions as 
possible, taking into consideration extent of territory and population in 
making and forming boundaries of such districts and a plat of each dis- 
trict to be filed in the office of the town clerk of said town. The purpose 
of such division is to have the different portions of each township repre- 
sented by a commissioner of highways who is a resident of such district, 
and when a vacancy occurs such vacancy shall be filled either by election 
appointment, or as the case may be, by a resident of said district where 
such vacancy occurs. [As amended June 21,, 1895.] 

nated for holding ♦.he election] for the election of [give title of the several 
offices to be filled], which election will be opened at the hour of 7 A. M. and con- 
tinue open until the hour of 5 P. M. that day. 
The names of the judges of election are [give their names.] 

Dated at , this day of , A. D. 

, Town Clerk. 

When people, under color of law, have organized themselves into towns, and have 
pone on for 10 years raising taxes, making improvements, and exercising their usual franchises, 
their rights are to be regarded as depending on acquiescence as much as on the regularity of 
their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. 
People v. Maynard, 15 Mich. R., 463. 

Prom proof that many years ago a town appointed town officers and conducted its 
h flairs as an organized town, its legal organization may be presumed. Londonderry v. Andover, 
28 Vt R., 416. 

(2) The above section sets out upon the principle that justices of the peace and con- 
stables thus elected are elected as if filling vacancies, the term expiring at the same time as 
other justices of the peace and constables in the county. The full term of justices and consta- 
bles fixed by the Constitution is four years. Const., Art. 7, Sec. 32. 

(8) The law has not provided a mode by which the persons elected commissioners 
of highways shall conduct the proceeding by lot to determine the term of office of each. Thej 



AJIT. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 39 

17. Refusal to organize— Second election] §17. If any town 
shall refuse or neglect to organize and elect town officers, the 
county board of the county may order another election for that 
purpose, and state the time and place of holding the same, notice 
of such election to be given as required for the first election. [L. 
1861, p. 219, § 2. 

18. Continued refusal.] § 18. If the town shall not then or- 
ganize and elect officers, the board may, at any regular or special 
meeting, appoint the necessary officers for such town, and the per- 
sons so appointed shall hold their offices until the next annual 
town meeting, and until their successors are elected or appointed 
and qualified. [L. 1861, p. 219, § 2. 

19. Failure to qualify.] § 19. If the persons so appointed 
shall fail to qualify, as required by law, or if, at any time after the 
organization of the town, the electors thereof refuse to elect or 
appoint officers, or to exercise the powers required by law, the 
county board may annex such town to an adjoining town, and the 
town so annexed shall thereafter constitute a part of the town to 
which it is annexed. [L. 1861, p. 219, § 3. 

20. When part of county not organized] § 20. When, in any 
county under township organization, there is any territory co-ex- 
tensive with the limits of a city situated therein, and which is not 
included within any organized town, such territory shall consti- 
tute a town by the name of such city, and all the provisions of 
this act shall apply to the town so constituted, the same as if it 
had been organized in the manner provided in this act in the case 
of the organization of new towns. 



are left to choose their own mode in this regard. When they have made their determination, 
in order that some proper record thereof may exist, it would be advisable to have their deter- 
mination reduced to writing, and filed with the town clerk. The following may be the form : 

Form of Determination of Commissioners of Highways by Lot for Term 

of Office. 



County, 



Town of 



J 



We, A. B., C. D. and E. F.. being elected commissioner?, of highway? 

for said town of at the first town electioK in said sown, beJd on 

the day of IS — , have determined between ui? c»y lot tnat the 

said A. B." shall hold hi? office for v.r^ree years, the said 0. D. for two 
years, and the said E. t\ for one year. 

Witness our hands, this day of , A. D. 18—. 

A. B., 
CD., 
E. F, 

To*» commissioners of highways are required to determine Ity lot the tenn of 
aaop wfcie entering upon the duties of their office. ITence. it.would seem to follow. Uiai if they 
-egiect such determination beyond the time for qualifying, the office would become vacant. 



iO TOWNSHIP OllQANIZATION ACT. I'DIV. L 



AETICLE II. 

HOW DISCONTINUED. 

Section. 

21. Petition — Election. 

22. Result of election. 

23. Election of county commissioners. 

24. When commissioners assume duties, etc. 

25. Disposition of town records, business and property. 

21. Petition— Election.] § 1. Upon the petition of at least 
one-fifth of the legal voters of any county having adopted town- 
ship organization, to be ascertained by the vote cast at the last 
preceding presidential election, the county board shall cause to be 
submitted to the voters of such county, at the next general elec- 
tion, the question of the continuance of township organization, to 
be voted on by ballots, written or printed, or partly written and 
partly printed, " For the continuance of township organization," 
or, "Against the continuance of township organization ; " notice 
to be given, and the votes to be canvassed and returns made in 
like manner as in this act provided in reference to a vote on the 
adoption of township organization. (1) [L. 1861, p. 235, §4. 

22. Result of election.] § 2. If it shall appear, by the returns 
of said election, that a majority of the votes cast on that ques- 
tion, at said election, are against the continuance of township 
organization, then such organization shall cease in said county, as 
soon as a county board is elected and qualified ; and all laws re- 
lating to counties not under township organization, shall be appli- 
cable to such county, the same as if township organization had 
never been adopted in it. [L. 1861, p. 265, § 5. 

23. Election of County Commissioners.] § 3. When township 
organization shall cease in any county, as provided in this act, 
a special election shall be held in such county on the first Mon- 
day of January next following, for three county commissioners, 
one of whom shall hold his office until the next general election 
of county commissioners, one until a year from the next general 
election, and the other until two years after the next general 
election, to be determined by lot, and until their successors are 
ejected and qualified ; and at every yearly general election after 

(1) The legislature lias no authority to repeal the law for township organization 
unless it adopts the same course and provides the same guaranties to protect the rights of all, 
required by the Constitution to be observed in the adoption of the township system. People v' 
Couchman, 15 111. R„ 142. 

The question of discontinuing township organization can only be submitted to 

* vote of the electors of such county at a general election. The annual town meeting is not a 
general election within the meaning of Sec. 5, Art. 10 of the Constitution. Opinion Att'y Gen'l 
E^salL March 6, 1878. 



ART. III.] ALTERATION OF BOUNDARIES, ETC. 41 

such special election, one such officer shall be elected. [L. 1861, 
p. 266, § 6. 

24. When commissioners assume duties, etc.] § 4. The 

county board elected at the special election, as provided in the 
next preceding section, shall assume the duties of their office on 
the first Monday of February next after their election, and shal 1 
be the legal successors to the county board of such county, and 
shall have all the rights and emoluments, and be subject to all 
the liabilities as provided in other cases of counties not under 
township organization. 

25. Disposition of town records, business, property, etc.] 

§ 5. When township organization is discontinued in any county, 
the records of the several towns shall be deposited in the county 
clerk's office, and the county commissioners of the county shall 
have power to close up all unfinished business of the several 
towns, and sell and dispose of any of the property belonging to 
the town, for the benefit of the inhabitants thereof, as fully as 
might have been done by the towns themselves, and to pay all 
the indebtedness of any town existing at the time of such dis- 
continuance, and cause the amount thereof, or so much as may 
be necessary, to be levied upon the property of the town. 



AKTICLE IIL 

OF THE ALTERATION OF BOUNDARIES, AND DIVISION OF TOWNS AND 

TOWN PROPERTY. 

Section. 

26. Powers of county board. 

27. Election in new "towns. 

28. Terms of officers. 

29. Taxes. 

30. Disposition of real estate on division of towns. 

31. Disposition of real estate on annexation of towns. 

32. Disposition of personalty. 

33. Meeting of supervisors and assessors. 

34. Burial Grounds. 

35. Apportionment of debts. 

36. Disputes submitted to county board. 

37. Proceedings to unite towns. 

26. Powers of County Board.] § 1. The county board of each 
county shall have full and complete power and jurisdiction to 
alter the boundaries of towns, to change town lines, and to divide 
enlarge and to create new towns in their respective counties, to 
suit the convenience of the inhabitants residing therein, and it 



42 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

shall be the duty of the county board to make such alterations of the 
town boundaries and create a new town whenever in any territory of not 
less than ten square miles, not less than three-fouths of the voters resid- 
ing in such territory shall petition for such new town: Provided, how- 
ever, the county board shall give notice thereof by posting up notices 
in not less than five of the most public places of the town interested at 
least sixty days before their final action; also by publishing such notice 
at least three times in some newspaper published in the count}" wherein 
said towns are situated, if any shall be published therein. 

Provided further, that no incorporated town shall be divided, except 
consent thereto is given by a majority of all the electors in said town, 
notice that the question of dividing said town will be submitted to the 
legal voters thereof having been given by the county clerk at the same 
time and in the same manner as the notice of said general election. (1) 
[As amended June 21, 1895. 



(1) The alteration of boundaries, changing to win lines or enlarging towns, would 
to signify about the same thing in either case, being only differently expressed. 



Form of Petition for Alteration of Boundaries, Change of Town Lines, or 

Enlarging a Town, 

To the honorable the county board of the county of , State of Illinois : 

The legal voters of the town of , in said county, do petition your 

honorable board to alter the boundaries of said town of , as follows 

[here set forth the alteration desired]. Such alteration of boundaries will 
not affect any town so that the territory thereof will be less than ten 
(10) square miles. 
And your petitioners will ever pray. 

The words change town lines, or enlarge a town, can be substituted in lieu of the words alter the 
boundaries of, in the foregoing form, when deemed more appropriate. 

Form of Petition for Dividing a Town. 
To the honorable the county board of the county of , State of Illinois : 

The undersigned legal voters of the town of , in said county, do 

petition your honorable board to divide said town as follows [here set forth 
the line of division as desired]. That the territory within the following 
boundaries [state the same] shall continue to form and exist as the said 

town of , and that the territory within the following boundaries 

[state the same] shall form a new tow r n, to be named the town of ; 

that the territory of each of said towns will not be less than ten (10) 
square miles. 

And your petitioners will ever pray. 

The foregoing form can he changed to suit the occasion of the creation of a new town. 

The law contemplates, in case of alteration of boundaries* that it shall be peti- 
tioned for by at least half the legal voters of each town affected. 

Form of Notice of Creating New Town, Dividing Town, or Changing 
Boundaries of Town. 

Fablic notice is hereby given that petitions will be presented to the 



AftT. 111.) ALTERATION OF JiOUNDAKIES, ETC. 4o* 



27. Election in new town or towns.] §2.When two or more towns 
are united into one, or when a town is divided into two or more towns, 
a new election shall be ordered in said new town or towns by the county 
board, and the time and place of holding the election shall be fixed, 
and judges of election appointed, and notice given in the same manner 
as required upon the first organization of towns. Provided, that when 
parts of several towns are taken to make a new town, it shall not 
be necessary to order an election in the towns from which territory is 
taken; but if any of the officers thereof shall continue to reside in the 
new town, his office shall be declared vacant, and filled as in other 
cases of vacancy. 

28. Terms of officers.] § 3. The officers elected or appointed 
at any such town meeting, shall hold their offices until the next an- 
nual town meeting, and until their successors are elected and qual- 
ified; except that one of the highway commissioners so elected 
shall hold his office until the next annual meeting, one until the 
second annual meeting, and the other until the third annual meet- 
ing, to be determined between them by lot, and until their suc- 
cessors are elected and qualified and except that any justice of 
the peace or constable so elected shall hold his office until the 
next general election of justices and constables, as fixed by law. 

29. Taxes.] § 4. The union of two or more towns, or the divis- 
ion or alteration of a town, after the making out of the assessor's books 



county board of the county of , State of Illinois, at the session 

thereof to be held at — — , oil the day of , A. D. 18 — , praying 

for [state what is petitioned for asset forth in the petitions']; and that final 
action of the board will be asked, on said petitions, at the time of presen- 
tation thereof. Dated this day of , A. D. 18—. 

Tlie foregoing Is held to l>e the proper form of notice. It is not required to be given 
by the county clerk. Neither is it necessary to be signed by any one. Nor is the county board 
required to give notice of the proposed action. Town of Woo Sung v. The People, 102 El. R, 648. In 
this case the Supreme Court recognize Haines' Township Organization Laws as authority. 

The county board can divide a township only at a regular meeting, and upon 60 
days' notice; and an order for this purpose, that the separation or division shall not take effect un- 
til the nest annual election of town officers, is authorized, and is in accordance with the statute. 
Sup. and Assessor of Hensley Township v. Ihe People ex rel., Barley, 84 111. R, 544. On an applica- 
tion by the required number of legal voters to the county board to set off a new town, the published 
eopy of notice need not contain the subscription of the names. People v. Carpenter, 24N.Y. R, 86. 

The act of the county board in dividing a town and setting off a new one, described 
only the dividing line. Held, that its uncertainty was cured by its reference to the application 
and notices preliminary to its passage, in which the tract south of the dividing line was designated 
for the new town ; also by proof that the first town meeting ordered to be called for this new town 
was summoned to a place south of said line, and was composed wholly of men residing south of 
said line. People v. Carpenter, 24 N. Y. R, 8G. 

The proviso in the statute giving the county hoard power to form new towns, and 
to divide or enlarge towns, requiring a vote in case an incorporated town is to be divided, refers to 
Incorporated towns and villages and not to towns under the township organization law ; and where 
no such incorporated town or village is to be divided, by any change of boundaries or the forma- 
tion of a new town, no vote is required. Harris et al. v. Schryock et al., 82 111. R, 119. See also, 
Twm of Woo Sung v. The People, 102 111. R, 648. 

Under the law prohibiting the creation of a new town of less territory than seven- 
teen square miles, where a town is divided, each part of the two towns resulting from the division 
must contain the requisite territory. In such case, both the towns become new ones formed from 
the old one. Town of Jefferson v. The People ex rel., 87 111. R, 504. 



4A TOWNSHIP ORGANIZATION ACT. [dI\. 1. 

in any year, shall not in any manner affect the assessment or collection 
of the taxes assessable or collectable in that year, but the same may 
be assessed and collected in the same manner and by the same officers 
as if no division or alteration had taken place. 

30. Disposition of real estate on division of towns.] § 5. When 
a town possessed of real estate shall be divided into two or more 
towns, the supervisors and assessors of the several towns consti- 
tuted by such division shall meet as soon as may be after the 
first town meetings subsequently held in such towns, and when so 
met shall have power to make such agreement concerning the 
disposition to be made of such town property and the apportion- 
ment of the proceeds as shall be equitable, and to take all meas- 
ures and execute all conveyances which may be necessary to 
carry such agreement into effect. (1) [L. 1861, p. 219, § 4 

(1) Form of Agreement by Supervisors and Assessors, in ease of Division oj 
Town, concerning Disposition and Apportionment of Heal estate. 

This agreement, made this day of , A. D. 18—, by A. B.. 

supervisor, and C. D., assessor of the town of , on the part of said 

town, and E. F., supervisor, G. H., assessor of the town of , on the 

part of said town of — — , in the county of , and State of Illinois, 

witnesseth. That, whereas, the town of , which formerly comprised 

the territory now composing the aforesaid towns of and , has 

inreiy been divided by proper authority, into two towns, named and styled 

as aforesaid, [or as the case may be], and whereas said town of was 

at such division thereof seized of the following real estate, to wit: [here 
describe the premises]. Now therefore it is agreed by and between said 
supervisors and assessors on the part of their respective towns, that said 
real estate be divided and disposed of for the benefit of said towns, as fol- 
lows: that portion thereof described as follows [here describe it], shall be 

and remain the property of said town of , and the balance thereof 

described as follows [here describe the remaining portion of said premises], 
be sold within three months from this date for the highest sum which the 
same can be sold for, and the proceeds thereof be paid over to said town 

of 

In witness whereof said supervisors and assessors have hereunto set their 
hands and private seals, the day and year first above written. 

A. B., [seal.] 

Supervisor. 

C. D., [seal.] 

Assessor. 

E. F., [SEAL.] 

Supervisor. 

G. H., [SEAIi.] 

Assessor. 

Tne foregoing form can toe varied to suit the circumstances of each case. Whatever 
agreement is made by the supervisors and assessors, should be reduced to writing in proper form, 
and a copy filed with the town clerk of each town interested. When a division of the property in 
impracticable, it may be appraised by the supervisors and assessors, and the town wherein it is 
situated may pay over to the other town its equitable share of the valuation and retain the whole 
property, when such course is deemed most advisable. It will be seen that the law has clothed 
the supervisors and assessors with ample authority for a proper division of the real estate; it has 
authorized them to make agreement concerning the disposition thereof, and such apportionment 
of proceeds as shall be equitable, and to take all measures and execute all conveyances necessnry 
to carry their agreement into effect; therefore when it is agreed that the property or any part 



LRT. HI.] ALTERATION OF BOUNDARIES, ETC. 45 

31. Disposition of real estate on annexation of towns.] § 6. 

When two or more towns possessed of real estate shall be united, or 
when a part of any town possessed of real estate shall be annexed to 
another town or towns, or taken to form a part of a new town, the su- 
pervisors and assessors of the town, so united, or of the town from 
which such territory is taken, and of the town or towns to which the 
same shall be annexed, or of which it shall constitute a part, shall, as 
soon as may be after such alteration meet for the purpose and possess 
the powers provided in the last preceding section. [As amended 1887. 



thereof shall be sold, the supervisors and assessors are authorized to execute the conveyance. A 
question may arise as to who should execute the conveyance, whether the supervisor or assessor 
of the town wherein the real estate is situated, in case of lying all in one town, or whether by the 
supervisors and assessors of the several towns interested. It can do no harm for them all to join 
in the conveyance. Indeed, such may be the more proper course. 

Form of Deed of Conveyance by Supervisors and Assessors Conveying Real 
Estate where Town is Divided. 

This indenture, made this day of , A. D. 18 — , between A. B., 

supervisor, and C. D., assessor, of the town of , E. F., supervisor, 

and G. H., assessor of the town of , which towns are in the county 

of , and State of Illinois, party of the first part, and L. M., of said 

county and State, party of the second part, witnesseth: That, whereas, 

said town of has lately been divided by proper authoritv, and said town 

of erected therefrom, [or as the case may be], and whereas said town 

of was at the time of such division seized of the following real estate 

[here describe the whole premises], and whereas it was agreed by the 
supervisors and assessors of each of the aforesaid towns, that the following 
portion of said real estate should be disposed of for the benefitof said town 
of -, [or as the agreement may be], as being the equitable share there- 
of to which said town would be entitled in consequence of such division, 
to-wit : [here describe the portion of the premises to be disposed of]. New, 
therefore, said party of the first part, for and in consideration of the sum 

of dollars paid by said party of the second part, the receipt whereof is 

hereby acknowledged, have and do grant, remise, release, convey and con- 
firm unto said party of the second part, and to his heirs and assigns for- 
ever, all the following described premises, lying and being in said town of 

, in the county of -, and State of Illinois, to-wit, [here describe 

the premises to be conveyed]. To have and to hold the same, together with 
all and singular the appurtenances and privileges thereunto belonging or 
in any wise appertaining, and all the estate, right, title, interest and claim 

whatever which said town of and , or either of them may have 

either in law or equity, to the only proper use, benefit and behoof of the 
said partty of the second part, his heirs and assigns forever. 

In witness whereof, said party of the first part have hereunto set their 
hands and seals, the day and year first above written. 

Signed, sealed and delivered 1 

in the presence of / A. B., [seal.] 

Supervisor. 

C. D., [SEAL.] 

Assessor. 

E. F., [SEAL.] 

Supervisor. 

G. H., [SEAL.] 

Assessor. 
fM foregoing deed thould be acknowledged In the usual form. 



46 TOWNSHIP ORGANIZATION ACT. [DIV. 1. 

32. Disposition of personal property.] § 7. When two or 
more towns, any one or more of which are possessed of or entitled to, 
moneys, rights or credits or other personal estate, shall be united, or 
when a town possessed of, or entitled to, moneys, rights or credits 
or other personal estate shall be divided or altered, such personal es- 
tate, including moneys, shall be apportioned between the towns 
interested therein by the supervisors and assessors of such towns 
according to the amount of taxable property in the town or towns 
united, divided or altered, as the same existed immediately 
before such union, division or alteration, to be ascertained by the last 
assessment list of such town; and such supervisors and assessors shall 
meet for the purpose aforesaid as soon as may be, after such union, di- 
vision or alteration. [As amended 1887. 

33. Meeting of supervisors and assessors.] § 8. Whenever a 
meeting of the supervisors and assessors of two or more towns 
shall be required, in order to carry into effect the provisions of 
this article, such meeting may be called by either of said super- 
visors ; but the supervisor calling the same shall give at least ten 



(1) The proceedings of the supervisors and assessors ought properly to be reduced to 
writing, as a memorandum showing how and in what manner the money, rights, credits, and 
other personal property is disposed of or apportioned, and how existing debts are apportioned, 
Mid a copy filed with other papers, if any, with the town clerk of such town interested. The fol- 
lowing is suggested as a form for such writing or memorandum. 

Form, of Proceedings of Supervisors and Assessors in Apportioning Prop- 
erty in case of Division of Towns. 

At a meeting of the supervisors and assessors of the towns of and 

in the county of , convened at the office of the town clerk oj 



said town of , on the day of , A. D. IS — , [if adjournments 

are had state the adjournment,] for the purpose of making agreement con- 
cerning the disposition of the real estate lately belonging to said town of 

, and apportioning the proceeds thereof according to law in such 

cases, in consequence of a division of the original town of ; also for 

the purpose of apportioning between said towns, the money, rights, credits 
and other personal property lately belonging to, and debts owing by said 

town of , the following proceedings were had. The real estate of 

said original town of was ordered -to be disposed of and proceeds ap- 
portioned according to written agreement between said supervisors and 

assessors, dated . Said town was found to be possessed of money to 

the amount of dollars, which was apportioned as follows [state how 

apportioned]. Said town was found to be entitled to money arising from 
[state the source from which the money is to be derived] to the amount of 

dollars, which was apportioned as follows, [state how apportioned, 

and continue in like manner setting forth all rights, credits and personal 
property of the town, and debts owing, and how apportioned between the 
towns."] 

A. B., Supervisor of the 
town of . 

C. D., Assessor of the 

town of . 

E. F., Supervisor of the 
town of . 

G H., Assessor of the 

kwn of . 



AJIT. EL] ALTERATION OF BOUNDARIES, ETC. 47 



days' notice in writing, to all the other officers, of the time and 
place at which such meeting is to be held.(l) [L. 1861, p. 220, § 7. 

34. Burial grounds.] § 9. The preceding section shall not, 
however, apply to any cemetery or burial ground, but the same 
shall belong to the town within which it may be situated after a 
division shall have been made. [L. 1861, p. 220, § 9. 

35. Apportionment of debts.] § 10. Debts owing by a town 
so sub-divided or altered shall be apportioned in the same man- 
ner as the personal property of the town, and each town shall 
thereafter be charged with its share of such debts according to 
such apportionment. (2) [L. 1861, p. 220, § 9. 

36. Disputes submitted to county court.] § 11. When the 

several towns cannot agree in relation to a division or apportionment of 
the real or personal property, or debts, or any part thereof as provided 
in the six preceding sections, the dispute shall be submitted to the 
county court of the county, whose decision in the matter shall be con- 
clusive between the parties. The court shall hear and determine the 
matter in a summary manner, without pleadings, and shall pronounce 
judgment as the right of the case may be. (3) [As amended 1887. 

(1) Form of Notice by Supervisor to other officers to Meet and Apportion 
Property in case of Division or Alteration of Town. 

To , supervisor [or assessor] of the town of , county of : 

You are hereby notified that a meeting of the supervisors and assessors 

of the towns of and , will be held at [state the place where], 

on Monday, the day of , A. D. 18 — , at the hour of ten o'clock in 

the forenoon, for the purpose of making agreement concerning the dispo- 
sition of the real estate lately belonging to said town of , and appor- 
tioning the proceeds thereof according to the law in such cases, in conse- 
quence of a division of the original town of , and the erection there-' 

from of the town of ; also for the purpose of apportioning between 

said towns the money, rights, credits and other personal property, lately 
belonging to said town of , at which time and place you are respect- 
fully requested to attend. 

Dated at , this day of , A. D. 18—. 

J. W. H., 
Supervisor of the town of . 

(2) The legislature, on the division of a town, may provide, as one of the condi- 
tions or terms of the division, that any burdens, to which the whole inhabitants would be sub- 
jected by the operation of the general laws in force at the time, shall be apportioned between the 
town^ so that they will still be borne by the whole inhabitants who would have been subjec ted to 
thembut for the division, and in doing this, they may fix the relative proportion between the 
towns. Londonderry v. Berry, 8 N. Hamp. R., 320. 

Where, after the division of a township, the town boards have met. and deter- 
mined the amount of the township indebtedness to be paid by the new township, such amount is 
a fixed and liquidated demand against such new township, which it is the duty or its town board to 
allow, and the clerk to issue his certificate for payment as in other cases. In case the board refuse 
to act, mandamus is the proper remedy. Marathon v. Oregon, 8 Mich. R., 372. 

(8) The submission of the question of division or apportionment of the property 

tinder the above section, in case of disagreement, should properly be in writing stating tne 
facts, signed by the supervisors and assessors, or verified by some person having authority in th« 
premises. The following may be the form of such submission : 



48 TOWNSHIP OBGANIZATION ACT. [DIY. 1 

87. The amendment, by the act of June 15, 1887, of §12 of the act to revise 
the law in relation to township organization (1874) is lengthy and elaborate; 
but in great part is in the nature of special legislation to facilitate the annex- 
ation of territory to the city of Chicago. 

The "county board of each county" has power and authority to unite two 
or more contiguous towns in one, and to transfer territory "not less than 
one-half square mile in area and containing at least one thousand inhabit- 
ants," (1) from one town to another. The mode of procedure is asfollows: 

1. A petition must be submitted to the county board. If the proposition 
be to unite two or more towns in one, the petition must be signed by at least 
one-fourth of all the electors of each town, or, if the town contain more 
than 400 electors, then by at least 100. If the proposition be to transfer terri- 
tory from one town to another, the petition must be signed by at least one- 
fourth of all the electors residing on such territory; or, if the number of such 
resident electors exceed 400, then by at least 100. 

2. The county board must submit to the electors of the towns affected, at 
a general town election, the question raised by such petition. Notice of the 
election must be given by posting, "in five public places in each town, a notifi- 
cation thereof," and by publishing the same in a newspaper in each town, if 
there be one; otherwise in a newspaper of the county. 

3. The form of voting paper prescribed by this amending act has been 
changed by effect of the act of June 22, 1891, commonly called the "Austral- 
ian law." Instead of the words "for uniting" or "against uniting" — "for an- 
nexation" or "against annexation"— the proposition should be succinctly 
stated, as, e. g., "to unite the towns of Fulano and Mengano," or "to transfer 
section 24, T. 18, E. 10 E. from the town of Mengano to the town of Fulano." 
with spaces in the margin as shown in § 16 of said act. [See Appendix ] 



Form of Submission of question of Division of Property to County Court in 

case of Disagreement between Towns 
To the honorable the county court of the county of , State of Illinois: 

The undersigned, the supervisor and assessor, of the town of ■ , and 

the supervisor and assessor of the town of , of the county aforesaid, 

respectfully represent to your honorable court that the town of , which 

formerly comprised the territory now composing the aforesaid towns of 

an a , has lately been divided by proper authority, into two towns 

named and styled as aforesaid, [or as the case may be], and whereas said town 

of was at such division thereof seized of the following real estate [or as 

the case may be], to -w it : [here describe the premises], and that said towns 
cannot agree in relation to a division of said real estate [or as the case may 
be] ; the matter |is therefore submitted to your honorable court for your 
decision, pursuant "to the statute in such case made and provided. 

Dated this day of- — — , A. D. 18—. 

A. B., Supervisor of the 

town of : . 

C. D., Assessor of the 

town of . 

E. F., Supervisor of the 

town of . 

G. H., Assessor of the 

town of . 



(1) This provision ia plainly incompatible with 26 ante; but obviously was designed to apply 
only in Cook county, or in extending the limits of a large city. 



LliT. TV.] CORPORATE POWERS OF TOWNS, ETC. 49 



4. If a majority of the votes in each town are affirmative, the county board, 
on the conclusion of the canvass, or on their next meeting, must declare such 

towns united under the name of "Town of ." But the actual officers of 

each will continue to act as such "in conjunction," duriug the remainder of 
their terms. "When one of the united towns is within the boundaries of a 
city, the effect of the union is annexation of the other to the city. 

5. So, on the question of disconnecting and annexing town territory. If 
a majority of the votes in each town is affirmative, the county board proceeds 
in the same manner, and if the original town is within a city the annexed 
terrritory is brought in. 

6. An adjustment of the assets and liabilities of the several towns effected, 
and of any school district that may be subjected to a change of boundaries, 
must be made by the proper town or school district officers. 

7. The annexation of towns or parts of towns to a city by operation of this 
act will not vacate any ordinance regulating or restraining the liquor traffic 
in such town or territory. Such ordinance can be repealed only on a petition 
of one hundred householders in the prohibition district, by the vote of a ma- 
jority of the whole number of aldermen, including those of the ward to which 
said district is wholly or partly attached. 

8. The remainder of this section has relation only -to the union of towns 
contained in Chicago park districts. (1) 

[In so far as this act of 1887 provided for the annexation of territory to 
cities and villages, it was held by the supreme court to be void. " The amend- 
atory act, after providing in respect to towns and changes therein, di ected 
that when the town to which new territory should be annexed is wholly within 
the limits of a city, the city limits shall be extended to include the territory 
so annexed. Held, that the act, in so far as it is assumed to provide for a 
change in the boundaries of cities and villages, that subject not being em- 
braced in the title of the act, was in violation of Art. 4, sec. 13, of the consti- 
tution." yDolese et al v. Pierce, 124 III. 140 ; Vill. of Hyde Park v. Chicago, 124 
III. 156.) 

This legislative fault was cured by the act of April 25, 1889, " to provide for 
the annexation of cities, incorporated towns and villages or parts of same," 
eta [See laws of 1889, p. 66. 

AETICLE IY. 

CORPORATE POWERS OP TOWNS, AND THE EXERCISE THEREOF — WHAT 

MAY BE DONE AT TOWN MEETINGS — BY-LAWS, 

RULES AND REGULATIONS. 



38. Corporate name.] § 1. The corporate name of each town 
shall be : " The town of (name of town)," and all acts done by 

(1) Form of Petition for Uniting Two Towns into One. 
To the honorable the county board of the county of , State of Illinois: 

The undersigned, being one-fourth of the voters of the town of •. 

In said county of , do petition your honorable board to unite said 

town to the town of , in said county, into one town ; said two towns 

being contiguous towns. 

And your petitioners will ever pray. 

i 



50 TOWNSHIP ORGANIZATION ACT. [DD L 

the town, and all actions by or against the town shall be in its cor- 
porate name.(l) [L. 1861, p. 218, § 3. 

39. Corporate powers.] § 2. Every town shall have corporate 
capacity to exercise the powers granted thereto, or necessarily im- 
plied, and no others. It shall have power — (2) 



(1) Concerning legal proceedings in favor of and against towns, see Art. b,posU 

Where a cause of action exists in behalf of a town, and no officer is by statute author* 
ized to prosecute for such cause of action, it is proper for the electors when convened at town 
meeting to direct such actiou to be brougnt, for which purpose they may appoint an agent to 
institute and prosecute the same, but such suit must be brought in the name of the town. 
CorneU v. Quiljord, 1 Den. R. , 510. 

The word " town " under the township system, is a species of municipal Incorpora- 
tion, and constitutes an integral part of a county; and such towns are clearly interwoven with 
vhe management of county affairs, and generally embrace a township according to government 
surveys. Martin v. The People ex rel. 87 111., 525. 

(2) Towns may be considered as quasi corporations, with limited powers co-exten- 
sive with the duties imposed on them by statute or usage, but restricted from a general use of 
the authority which belongs to corporations by common law. Rumford v. Wood, 13 Mass. R. f 
193 ; Drake et al. v. Phillips et al., 40 111. R., 388. 

These organized towns or townships are not municipal corporations in the sense which the 
term is ordinarily used in our statutes. They are regarded as quasi corporations. See Norton v. 
Peck, 3 Wis. R., 714. And as such have power to impose taxes for specific purposes. Drake et al. 
v. PMUip* et al., 40 111. R., 388. 

The constitution recognizes counties, cities, towns and townships as municipal- 
ities: Art on Mun. Sub. to R R. And it recugnizes counties, cities, townships and school dis- 
tricts as municipal corporations. Const. Art. 9, g 12. As contemplated by the Constitution, * 
township is a territorial subdivision of a county for purposes of local government. Const. Art. 
10, § 5. Town and village are regarded as synonymous, and meaning the same thing. A town 
or village is a small collection of houses in a compact form, which may or may not be incorpor- 
ated. If incorporated, it usually possesses limited powers. A city is a large incorporated town, 
with more extensive powers in accordance with the demands of its population. Its affairs are 
controlled by a mayor and aldermen. 

In our statutes concerning township organization, the word " town " is used as synonymous 
with township. 

The whole power and capacity of" towns, as corporations, is derived from and con- 
ferred by statute, and is specified and confined by certain functions only. Their authority to 
contract or assume liabilities is restricted to cases where such action is necessary for the exer- 
cise of their appropriate functions as corporations, and their power to sue and be sued must be 
limited to cases where the assertion of their corporate rights, or the enforcement of their corpor- 
ate liabilities, requires such proceeding. Town of FishkiU v. FishkiU & Beekman Plank Rood Oo^ 
22 Barb. R., 634. 

Towns do not hold their powers ordinarily under any grant from the govern- 
ment to the individual corporation ; or by virtue of any contract with the government, or upon 
any condition, express or implied. They give no assent in their corporate capacity to the laws 

which impose their public duties or fix their territorial limits. Perley, Ch. J., in Eastman v. 

Meredith. 26 N. Hamp. Rep., 284, 290. And they derive none of their powers from ; nor are any 
duties imposed upon them by the common law. They have been denominated quasi corporations, 
and their whole capacities, powers and duties are derived trom legislative enactments. Sheplky, 
Ch. J., in Hooper v. Emery, 14 Maine R. (2 Shep.), 375. 

Towns derive all their powers from legislative enactments, and all their duties 
are imposed thereby. Hooper v. Emery, 14 Me. R., 375. Like other corporations they have no 
powers except such as are expressly or impliedly granted to them, by the legislative power of 
the state. Baldwin v. North Brandford, 32 Conn. R., 47. Booth v. Woodbury, Id., 118. Webster v. 
Harwinton, Id., 131. 

It is held that a town may indemnify its officers against a liability which they may 
incur in the bona fide discharge of their duties, although it turns out that they had exceeded 
their legal rights and authority. Bancroft v. Lynfield, 18 Pick. R.. 566. 

A town cannot make a valid subscription in aid of a railroad, unless expressly 
authorized by law; but such a subscription, if authorized by law, and made in conformity there- 
to, is valid and binding on the town. Bushnell v. Bdoit, 10 Wis. R.. 195; Town of Rochester v. 
Alfred Bk. et al., 13 Id., 432 ; Berliner v. Town of Watertown, 14 Id., 378 ; Veeder v. Town of Lima, 
19 let, 280. 

See the foregoing cases as to the issuing of bonds and their validity in the han&i (f innocent 
"holders and third parties. 



AKT. IV.] CORPORATE POWERS OF TOWNS, ETC. 51 

1. To sue and be sued.(l) 

2. To acquire by purchase, gift or devise, and to hold property, 
both real and personal, for the use of its inhabitants, and again to 
sell and convey the same. (2) 



The constitution of Illinois declares that, no township shall ever become subscriber 
to the capital stock of any railroad or private corporation, or make donation to or loan its credit 
In aid of such corporation. Const., Art. on Mun. Sub. to R. R. or Priv. Corp. Since which, towns 
have no authority to subscribe for or donate to the capital stock of railroad companies. Tiie 
People ex rel., etc., v. Brooks, 56 111. R., 142. 

As to origin and power of towns in Massachusetts, see note to case of Commonwealth v. Boxbury, 
t Gray (Mass.) R., 510, 511. 

A municipal corporation must show authority in terms or by necessary impli- 
cation for all the powers it attempts to exercise, and especially so when it claims the right, by 
taxing or otherwise, to divest individuals of their property without their consent. Where a new 
power is given and the means of executing it provided, those claiming the power can exercise it 
in no other manner. Mix v. Rose et al., 56 I1L R., 121. 

It la the design of the law that municipal corporations shall exercise com- 
plete control over their local affairs. The legislature ordinarily has no power to impose a debt 
or levy a tax upon a municipal corporation without its assent, or to authorize persons not corpor- 
ate officers to create a debt against the corporation, or to levy a tax therein, either directly or in- 
directly, without the consent of those to be affected thereby, or of the municipal authorities. Wilder 
tt al. v. City of East St. Louis, 55 I1L R.. 133. 

(1) A township was sued on the following instrument : M The commissioners of highways 
of the township of R. will pay the bearer twenty dollars when funds in road district number 
three and four." dated and signed by the commissioners. Held, that the action could not be sus- 
tained. The order was too indefinite in its terms. It should show expressly the person to whom 
pavable, and on what account. Monroe v. Township of Rowland, 11 Mich. R., 348; People v. Town 
Board of Zelwaukie, 10 Mich. R., 274. 

A township is not liable for interest on damages appraised for laying out a highway. People v. 
Township Board of La Grange, 2 Mich. R., 187. 

A town, in its corporate capacity, cannot maintain an action to vindicate the tax payers from 
an illegal tax. Guilford v. Supervisors Chenango Co., 3 Kern. R., 143. 

A town, organized under township organization in Illinois, is liable equally with natural per- 
sons in tresspass, for wrongfully taking the goods of another than the execution defendant Wolf 
V. Boetcher, 64 m. R., 316. 

Towns, under the township organization act, are not liable to a private action 
for damages occasioned bv the neglect of the town authorities to keep their public highways in 
repair. The case of The Town of South Ottawa v. Foster, 20 111. R., 296. so far as it holds the latter 
description of towns liable to such private actions, is overruled. In respect to that character of 
liability there is no difference between the authorities of counties and their powers and duties 
in regard to public highways, and towns established by law as civil divisions of counties merely, 
and the doctrine of the case of Hedges v. The County of Madison, 1 Gilm. R„ 567, declaring that 
counties are not liable to such private actions, applies to towns of that description. The rule is 
otherwise in case of municipal corporations created for their own benefit, where more extensive 
powers and privileges are granted, as cities and villages. Town of Waltham v. Kemper, 55 111. R., 
§46 ; Bushnell v. Toum of Steuben, 57 111. R., 35. Nor can towns be subjected to such liability 
through an action against the commissioners of highways. Commissioners of Highways v. Martin, 
4 Mich. R., 557. 

In a later case the supreme court say that the maxim that no one has the ri^ht to use 
his property so as to injure another, applies as well to townships as to incorporated cities and 
natural persons. Tearneu et al. v. Smith, 86 m. R., 391. 

(2) Towns may lawfully take by purchase or devise, and hold real estate, other 
than such as may be necessary to erect school houses and other public buildings upon. Worces- 
ter v. Eaton, 13 Mass. R.. 371. They may take the fee of lands, for the purpose of public commons, 
and this by purchase. Beach v. llaynes, 12 Vt. R., 15. 

A town may gain title to lands by possession as well as an individual. Booth ▼. 

Coventry, 4 Vt. R., 297. 

A town has no power to hold land not situated within Its own limits. N. Hemp- 
etead v. Hempstead, Hopk. Ch. R., 288, 2 Wend. R., 109 ; Riley v. City of Rochester, 9 N. Y. (5 Seld.) 
R., 64 

Where a town owns a lot of taud, and by vote assents to a proposed exchange oi 
It the title to the land does not pass by the mere act of such vote. Atherton v. Johnson, 2 N. Ramp. 
R... 31. 

A tuwu has no title to lands over 'which a highway passes; it remains in the 



52 TOWNSHIP ORGANIZATION ACT. |i>l7. L 

3. To make all such contracts as may be necessary in the exer- 
cise of the powers of the town.(l) [L. 1861, p. 218, § 1, 2. 

respective owner, subject to the right of way by the public. Such right of passage does not be- 
long to, nor is it in any sense the property of any particular town or county, but that of the 
whole State. Town of Galen v. Clyde, Etc., Plank Road Co., 27 Barb. R. 543. 

A sufficient and convenient room for elections and town meeting purposes is 
a public use for which the town may purchase and hold a site, and erect a building, if there is 
none thereon, making all necessary contracts therefor. Such power includes the lesser power to 
lease a building for those purposes. Town of Beaver Dam v. Firings, 17 Wis. R., 398. 

A (own may erect a town house of sufficient capacity for all the business which it may 
have occasion to do in such a building, and may, in its erection, make suitable provision for ita 
prospective wants ; and if the building contains rooms not wanted for the time being for munic- 
ipal business, the town may let them temporily, or allow them to be used gratuitously. And the 
condition of a deed of land to the inhabitants of a town, which provides that the same " shall 
not be used for any other purpose than as a place for a town house for said inhabitants," is not 
broken, by the erection thereof of a town house, with a hall in the second story which has been 
used for miscellaneous purposes, and rooms upon the sides of the entrance which have been 
let and used for shops and other purposes not connected with municipal business, and the con- 
struction and use for several years of a lock-up under the building. French v. Quincy, 3 Allen 
(Mass.) B^, 9. 

(1) Where a contract is made in pursuance of a vote of a town, but before the con- 
tract is performed the vote is rescinded, it seems that the person with whom the contract is made 
is not affected by the rescission, unless he had notice thereof, in which case it would be otherwise. 
Allen v. Taunton, 19 Pick. R., 485. So a vote of a town authorizing payment for certain work 
done, if not acted upon by the party in whose favor the vote is taken, may be rescinded at the 
same or a subsequent meeting. Oetchell v. Well*. 55 Maine R., 433 ; Bumford v. Wood, 13 Mass. 
R., 193, 199. 

Towns are not bound, even toy the express vote of the electors thereof to the 
performance of contracts or other legal duties, not coming within the scope of the objects and 
purposes for which they exist. Parsons v. Ooshen, 11 Pick. (Mass. R.), 396 ; Stetson v. Kempton, 13 
Mass. R., 272 ; Norton v. Mansfield, 16 Mass. R., 48 ; Anthony v. Adams, 1 Mete. (Mass. R.) 284. 

A town, as such, has no authority to contract with a plank road company, 

or other corporation, granting them the use of a highway in the town ; as a corporation a town 
has nothing to do with, and no interest in the highways within its limits ; the title to the soil is 
in individuals; the right to their use belongs to the inhabitants of the town, not exclusively, but 
in common with the whole public. The care and superintendence of highways has been com- 
mitted to certain officers of the town chosen for that purpose, and whose duties are prescribed 
by law. See Town of FishkiU v. FishkiU & Beekman Plank Road Co., 22 Barb. R., 634. 

A town, In its corporate capacity, cannot maintain an action to set aside a 
contract entered into between the supervisor and commissioners of highways of the one pari 
and a plank road company of the other, under which the company claims possession of a pub- 
lic highway in said town. Town of Galen v. Clyde, Etc., Plank Road Co., 27 Barb. R.), 543. 

A town may take a bond, voluntarily given, to save the town harmless from the 
support of certain persons therein named; nor need it appear from the bond that they were at 
the time a charge on the town. It is sumcient that the declaration shows necessary expenditure 
fox their support before action brought. Parolet v. Strong. 2 Vt. R., 442. 

In respect to the binding effect of contracts illegally made by the officers of 
municipal corporations, as organized townships, the rule is different from that in regard to 
private corporations organized for pecuniary gain. If such corporations, to increase their profits, 
embark in enterprises not authorized by their charter, still, as to third persons, and when neces- 
sary for the advancement of justice, the stockholders will be presumed to have assented, since 
it is in their power to restrain their officers when they transgress the limits of their chartered 
authority. But municipal corporations are not organized for gain, but for the purpose of gov- 
ernment, and debts illegally contracted by their officers cannot be made binding upon the tax- 
payers from the presumed assent of the latter. Bradley v. Ballard, 55 111. R., 413. 

Town officers are not deemed personally liable on contracts made in behalf of the 
town merely because they transcend their authority as such, if the other contracting party 
knows at the time that the* contract is in excess of their authority. Leet v. Shedd, 42 Vt R., 277. 

A town committee having charge of the repair of roads were held not personally 
liable for inadvertently pointing out to a road contractor an erroneous location of his section. 
Nickerson v. Dyer, 105 Mass. R., 320. 

Held, that -where a town, through one of its selectmen, makes a contract and 
avails itself of the benefits thereof, it will not be allowed to repudiate any of its stipulations 
after the performance of the agreement by the other party by showing that the remainder of the 
selectmen were not cognizant of its terms. Earl v. Wallingford, 44 Vt. R., 367. 

The enumerated powers of towns Includes that of erecting a suitable building 
or town house, so called, for holding town meetings ; for the convenience of town officers, ana 



ART. IV.] CORPORATE POWERS — TOWN MEETINGS. 53 



WHAT MAY BE DONE AT TOWN MEETING. 

40. Powers of town meeting.] § 3. The electors present at 
the annual town meeting shall have power — (1) 

1. To make all orders for the sale, conveyance, regulation or use 
of its corporate property that may be deemed conducive to the 

interests of its inhabitants. 

2. To take all necessary measures and give directions for th<* 

exercise of their corporate powers. 

3. To direct the raising of money by taxation for the following 
purposes :(2) 

for transacting all town business. The erection of such a building, selection of a site, as well as 
purchase of the land therefor, is under the control and direction of the electors at town meet- 
ing. They may accomplish this by a vote of the electors, or by the appointment of a committee 
with power to act. A very proper course would be to entrust the matter to the board of town 
auditors. See Town of Beaver Dam v. Frings, 17 Wis. R., 398 ; Kempton v. Stetson, 13 Mass. R., 271. 

The necessity of building a town hall and the amount of expense for that purpose 

is a question which is left to the judgment of the people of the town, and the officers whom 
they mav elect. Courts will not interfere in this regard unless proper cause is shown. Qreeley 
et at. v. the People, 60 IU. R., 19. 

Powers of towns to erect town halls and buildings for rental discussed— see White v. Stanford, 
87 Conn. R., 578. 

On the subject of building town house, see ante p. 52, note. 

A town may receive by endorsement a negotiable note for the purpose of meeting 
an expected claim upon the town by the payee, and may maintain a suit tnereon as indorsee, 
In the name of the town. This power may be exercised by the town agent or town authorities, 
without a vote of the town. Augusta v. Leadbetter, 16 Maine. R., 45. 

(1) The powers of electors to bind the town are conferred by statute, and are 

limited to such acts as are prescribed by law. Cornell v. Guilford, 1 Denio R., 510. 

It is heldin Massachusetts that a town may indemnify its officers against a liability which they 
may incur in the bona fide discharge of their duties, although it turns out that they have ex- 
ceeded their legal rights and authority. Bancroft v. Lynfield, 18 Pick. R., 566. 

A town meeting has no power to audit and allow accounts against the town. This 
authority is conferred upon the board of Town Auditors. See post Art XIIL People v. Onon- 
daga, 16 Mich R., 254. 

The electors at a town meeting cannot direct an officer of the town to perform any 
act which by law he has not authority to perform, nor to act in any other manner, in the per- 
formance of his duty, than that which is pointed out by law. Keen v. Stetson, 5 Pick. R., 492. 

An act of the legislature legalizing a vote of a town renders such vote valid. al- 
though not confirmed by the town. Potter v. Canaan, 37 Conn. R., 222; Stuartr. Warren, 87 Conn. 
R.,225. 

A liberal and favorable construction should prevail to support the proceedings of 
towns, especially when no one is thereby injured or deprived of any right. Kellar v. Savage, 6 
Bhep. R.,444. 

(2) It is not necessary that towns in their votes raising money for the annual ex- 
penditures authorized by law should in all cases state a specific sum for each particular object. 
A vote to raise a certain sum for the expenditures of the current year is a legal vote. Tucker v. 
Aiken, 7 N. Hamp. R., 113. 

When bonds are issued, which are a town charge, to be paid by taxation, the elect- 
ors at a town meeting, have the legal authority to vote taxes in advance, to meet their prompt 
pavment, and how long in advance may De safely left to be determined by a vote of the electors 
of the town. Wright v. The People ex rel., 87 111., R. 582. 

Where a town has voted a tax, but nothing has been done under the vote, the town 
has the power, at a subsequent meeting legally held, to rescind, or reconsider, the vote; and 
having done so, the collector cannot legally proceed to collect the tax. Stoddard v. Oilman, 22 
Vt. R., 568. 

Where a town having authority to vote a tax for one year votes it for three or more 
years, the tax voted will be valid for one year. People v. Allen, 43 111. R., 461. 



54 TOWNSHIP OKGANIZATION ACT. [DIY. I. 

First — For constructing or repairing roads, bridges or cause- 
ways within the town, to the extent allowed by law.(l) 

Second — For the prosecution or defense of suits by or against 
the town, or in which it is interested. (2) 

Third — For any other purpose required by law. (3) 

Fourth — For the purpose of building or repairing bridges or 
causeways in any other town in the same county or in another 
county : Provided, that notice is given by posting notices describ- 
ing the location of the bridge or causeway, and the probable 
amount required therefor, in at least three public places, at least 
ten days before the meeting in the town in which the taxes are 
proposed to be levied : And provided, also, that the tax, when col- 
lected, shall be paid only on the joint order of the commissioners 
of highways of the town in which the bridge or causeway to be 

(1) Concerning tax for roads and bridges. See post, Div. II, title " Roads and Bridges.** 

(2) A town may vote a tax to defend a suit in which they are interested, whether 
directly for or against the town, or between third persons. Briggs v. Whipple, 6 Vt. R., 95. 

If a town officer in attempting to enforce an ordinance of the town, wrong- 
fully causes the imprisonment of the party charged with violating the ordinance, the town is not 
liable for such unauthorized act of the officer. President and Trustees of Odell v. Schroeder et ux., 
58 I1L R., 363. 

Held that a town cannot properly vote to pay money to its selectmen— who 

we a board of officers having charge of town affairs— for costs and damages sustained by them 
in resisting criminal prosecutions brought against them for refusing to insert names upon a 
check list provided by the statute' and money thus voted cannot be collected. Merrill v. Plain- 
field, 45 N. Hamp. R., 126. And when selectmen have applied the money of the town to pay their 
expenses in defending against a criminal prosecution brought against them for alleged official 
misconduct in making up the check list, a subsequent vote of the town to ratify this application 
of the money will not be valid against a voter and tax payer of the town who has not assented 
to it Gates v. Hancock, 45 N. Hamp. R., 528. 

(3) The term ** purposes required hy law," most doubtless be understood aa 

including also those cases where an obligation on the town is necessarily implied; but in exercis- 
ing this power the electors will be held to legitimate purposes, where the town is immediately 
interested or directly benefitted. See People v. Works, 7 Wend. R., 486 ; Drake et at. v. Phillips et aL, 
40 111 R., 389. 

Held, in Massachusetts, that a town may appropriate money to indemnify a board of town offi- 
cers for expenses incurred in defending an action for an alleged libel, contained in a report made 
by them in good faith, in the line of their duty, and in which judgment has been rendered in 
their favor. Fuller v. Orolon, 11 Gray (Mass.) R., 340. 

Where a town in its corporate capacity owns property exposed to damage by 
ore, they may appropriate corporate funds for its protection. Van Sicklen v. Burlington, 27 Vt. R., 70. 

A town cannot levy a tax to refund money voluntarily paid by individuals- 
Drake et al. v. Phillips et al., 40 111. R., 389. Nor can a town raise money to refund money given to 
the town without expectation of repayment. Perkins v. MUford, 59 Maine R., 315. 

A town cannot legally raise money for the apprehension and conviction of per- 
sons charged with crime. Gale v. Inhabitants of South Berwick, 51 Maine R., 174. Nor can a town 
appropriate money for the celebration of the Fourth of July. Hood v. Lynn, 1 Allen R., 103; New 
London v. Brainard, 22 Conn. R., 552. 

Towns have no authority to raise money for building a theatre or any other 

f)lace of mere amusement; nor for the purpose of raising a statue or monument, unless in popu- 
ous and wealthy towns they thould be thought suitable ornaments to public buildings and the 
like. Stetson v. Kempton, 13 Mass. R., 272. 

The electors at town meeting cannot vote a tax for improving lands or 

buildings not owned by the town; as to improve a town-house hired at the public expensa 
People v. Works, 7 Wend. R., 486. 



ART. IV.] CORPORATE POWERS — TOWN MEETINGS. 55 

built or repaired is situated, and those of the town in which the 
tax is collected. (1) 

4. To provide for the institution, defense or disposition of suits 
at law or in equity, in all controversies between the town and 
any other town, or any individual or corporation, in which the 
town is interested. (2) 



(1) Where the law requires that notice shall he given of any special matter to be 
brought before a town meeting, in order to authorize action thereon, a vote taken upon such 
matter without notice being given is a nullity. Brackett v. W hidden, 3 N. Hamp. B.., 17. But this 
rule does not apply to those current subjects which come before the annual town meeting as a 
matter of course pursuant to the general statutes. 

Where notice of any special subject to he brought before a town meeting is 
required to be inserted in the notice of the meeting, the phraseology employed by the clerk 
will be liberally construed for the purposes intended. Bull v Warren, 36 Conn. R., S3. 

In giving notice for levy of a tax for hridge purposes in another town, no defi- 
nite mode of proceeding being provided, it would seem proper to adopt the rule prescribed in 
other similar cases. A request may be made to the town clerk by any elector of the town to have 
the subject brought before the next annual town meeting; in which case the clerk may include 
the subject, as requested, in the notice of the town meeting, as in case of change of place of 
holding the town meeting. Pee Art. VI, § 5, post, p. 68. Or the notice for this purpose may be 
posted as a separate notice. The law does not prevent the town clerk from giving the notice 
even without a request; and when request is made, it may or may not be in writing. 

The following may he the form of the words to be inserted in the notice of the annual 
town meeting in the foregoing case: 

Notice is, also, hereby given that at said town meeting the following 
subject will be considered, to wit: The raising of money by taxation, for 
the purpose of building [or as the case may be~\ a bridge in the town of 

— , across a stream known as [name of stream], at the place where the 

highway crosses said stream, leading from to . The probable 

amount required therefor is dollars. 

The act concerning roads and hridges provides that the treasurer of the com- 
missioners of highways shaD receive and have charge of all moneys raised in the town for the 
support and maintenance of roads and bridges. See Div. II, post, "Roads and Bridges." \ 11. In 
view of this it would seem that the money collected for tax levied for bridge and causeway pur- 

f>oses in another town should be paid over to the treasurer of the commissioners of highways of 
he town wherein the tax is levied, as in other cases. 

The joint order of the commissioners of highways may be in the following form : 

Form of Joint Order of Commissioners of Highways. 



County, 



Town sf 



■,} 



To the treasurer of the commissioners of highways of said town : 

Pay to , or order, the sum of dollars on account of funds in 

your hands from tax levied and collected for bridge and causeway purposes 

in the town of . 

Dated this day of , A. D. 18—. 

A. B., ") Corn's of highways 
C. D., \ of 

E.F.J town of . 

G. H., ) Corn's of highways 
I. J., \ of 
L.M.,J town of . 

S Prosecution and defense of suits. It is held in New Hampshire that town3 have a 
ified interest in the roadways and bridges they have erected, and may maintain an action on 
the case for the destruction or obstruction of the road, or the conversion of the material. Town 
of Troy v. Cheshire R. R. Co., 3 Foster R., 83. 

Held in Massachusetts that it is competent for the inhabitants of a town to take upon them- 
•el ves the expense of a suit against their agent or servant in which the interests of the town are 



56 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

5. To prevent the introduction, growing or dissemination of 
Canada thistles or noxious weeds, and to allow rewards for their 
destruction, and to raise money therefor. (1) 

6. To offer premiums and to take such action as shall induce the 
planting and cultivating of trees along the highways in such 
towns, and to protect and preserve trees standing along or on 
highways. 

7. To make rules and regulations for ascertaining the sufficiency 
of all fences in such town, and to determine what shall be a law- 
ful fence within the town, except as otherwise provided by law. (2) 

8. To restrain, regulate or prohibit the running at large of cat- 
tle, horses, mules, asses, swine, sheep or goats, and to determine 
the time and manner in which such animals may go at large, un- 
less the same are restrained from running at large in some manner 
provided by law. (3) 



directly involved. Where the servants of the town have made mistakes which have rendered 
them liable at law, that it is legal and proper for the town to meet the expense. Babbitt et al. v. 
Bavoy, 3 Cush. R., 530. 

No action lies against a town for an injury to persons or property occasioned by the suffering of 
a public highway to become out of repair, and in a ruinous and unsafe condition ; and the elec- 
tors at town meeting have no authority, and cannot, by a majority vote, bind the town by agree- 
ing to pay to the owner his damages he has sustained by such injuries. The town could not 
be made liable for their neglect without some express statute to that effect In most of the , New 
England States such a statute exists. See Morey v. Newfane, 8 Barb. R., 645 ; also 17 Johns. R., 452; 
Bushnell v. Town of Steuben, 57 111. R., 35 ; BusseU, Admr., v. Town of Steuben, 57 I1L R., 35 ; Town of 
Waltham v. Kemper, 55 111. R., 346. 

(1) On the subject of Canada thistles, see, also, post, subject " Canada Thistles." 

(2) Concerning fences, see, also, Div IV., title "Fences." po$L 

(3) Concerning animals running at large, see, also, Dir. X., title "Animals running 
at large," pout. 

The rule of common law, which requires the owner of cattle, horses and other animal* 
to keep them on his own land, was formerly not in force in Illinois. Seeley v. Peters, 5 Gilm. K. 
ISO; Mlsner v. Lighthall, 13 111. R., 609. But by the law above referred to, the rule of the common 
law has been changed in this regard, and such animals are not allowed to run at large, except 
where permitted by a vote of the people, in pursuance of the law. It will be seen, by reference 
to the law above referred to, post, p. 372, that where counties vote to allow domestic animals to 
run at large, the towns of the county may, nevertheless, by vote, restrain such animals from run- 
ning at large in the town so voting. 

A vote of a town to restrain cattle or other animals from going at large within 

the limits of the town, is binding upon persons not inhabitants, whose animals are found going 
at large. Gilmore v. Holt, 4 Pick. R., 258; Ames et al. v. Carlton, 41 111. R., 262. 

Any by-law of a town declaring that all hogs should be kept up, only extends to prevent hogs 
from going at large on the highway; and it seems that a town has no power to prevent the inhab. 
itants from allowing their own hogs and other animals to go at large upon their own lands. Shep- 
ard v. Hees, 12 John. R., 433. But the owner of animals running at large would be liable to the 
damage they may do. 

Towns may make by-laws or ordinances prohibiting cattle and other animals 
from running at large. The owner of animals running at large, contrary to such by-laws or ordi- 
nances, will be liable for trespass if his cattle go upon the land of others. A justice of the peace 
has jurisdiction in an action of trespass for damages in such cases. Thus, a suit was brought by 
A. against B. before a justice of the peace. The cause was taken to the Circuit Court by appeal, 
and tried upon the following agreed state of facts : " The plaintiff is a resident of the town of Ne- 
vada, and tne defendant is a resident of the the town of Sunbury, lying adjoining in the sama 
county. The defendant's cattle were running at large in the town of Sunbury ; and, while so run- 
ning at large, crossed the town line into the town ot Nevada, and did damage to the plaintiff'! 
crops to the amount of five dollars. The plaintiff's crop was protected by no fence further than 






ART. IV.] CORPORATE POWERS — TOWN MEETINGS. 57 

9. To establish and maintain pounds at such places within the 
town as may be deemed necessary and convenient, and discon- 
tinue any pounds therein. When any pound is erected, it shall 
be under the care and direction of a pound master. (1) 

10. To determine the number of pound masters, to prescribe 
their duties, and to elect pound masters, either by ballot or in 
such other manner as they may determine, or provide for their 
appointment. 

11. To authorize the distraining, impounding and sale of cattle, 
horses, mules, asses, swine, sheep or goats for penalties incurred 
and costs of the proceeding : Provided, that the sale of animals 
distrained or impounded shall be conducted, as near as may be, 
according to the law regulating sales of property by constables 
under execution: And, provided, also, the owner of such animals 
shall have the right to redeem the same from the purchaser 
thereof at any time within three months from the date of the 
sale, by paying the amount of the purchaser's bid, with reason- 
able costs for their keeping, and interest upon the amount bid at 
the rate of ten per cent, per annum. (2) 



required by the ordinance hereinafter set forth. The town of Nevada had adopted the following 
ordinance "or by-laws: 

1. The outside edge of cultivated lands shfll b« a good and lawful close or fence for all pur- 
poses in law. 

2. No cattle, horses, mules, asses, hogs or sheep, shall be permitted to run at large in the town 
sf Nevada, in the county of Livingston, and State of Illinois. 

The court found for the plaintiff, and the cause was taken to the Supreme Court, and judgment 
affirmed. The court say, Lawrence, Justice: 

The statute authorizes every town to prohibit the running at large of cattle, horses, etc. This 
town did so. Under the operation of this ordinance, cattle running at large were running in vio- 
lation of law, and their entry upon the premises of a stranger was a trespass, as at common law, 
Justices have jurisdiction of the action of trespass to real estate, and would, therefore, have juris- 
diction of an action brought to recover damages for injuries done by cattle illegally at large. The 
special remedy given by the ordinance is simply cumulative, and could not oust the justice of a 
general jurisdiction given him by the statute. The only question for him to decide was, whether 
tne defendant's cattle had illegally gone on the land of the plaintiff. If a trespass, the owner was 
liable for any damages done, and these damages could be recovered before any tribunal having 
jurisdiction of the parties and of the action of trespass. Judgment affirmed. Ames et al. v. Carl- 
ton, 41 I1L R., 262. 

Wliere an act concerning animals running at large provided for taking up by a 
householder, and that the same should be delivered up to the owner on payment of fees and charges. 
Held, that a party seeking to justify such taking up must show that he is a householder (see Elinger 
v. Boneau, 51 ill. R., 94), and that the owner, before he can maintain replevin, must show both a 
demand for the animals and an offer to pay the fees allowed for taking up, and charges for keep- 
ing the same, as prescribed by the act. Holcomb v. Davis, 56 111. R., 413. 

( 1 ) Location of pounds. It seems to be the policy of the law that pounds shall have a 
fixed and kno wu locality. This is necessary, that all parties interested may take notice of where 
to apply in ca>e of animals impounded. If no public pound has been erected by the town, it- 
would be proper to designate any particular enclosure named, as a pound for the time being. In 
case neither course is adopted, it would no doubt be proper for the town bj its by-laws to au- 
thorize a person to impound animals in his private enclosure, by giving immediate personal 
notice to the owner. Anthony v. Anthony, 6 Allen (Mass.) R., 418. 

Trespass will lie where a pound master allows impounded cattl* to be driven away 

for pasture, or where there is unreasonable delay in complying with the law or regulations of 
Uie town. Cole v. Cate, 44 N. Ilamp. R„ 211 ; liarriman v. Ftjleld, 36 Vt. R., 341. 

( 2) A person distraining cattle running at large, contrary to the regulations of the 
town, mu>t drive them to the pound in a reasonable time, considering the circumstances. As to 



58 TOWNSHIP ORGANIZATION ACT. [DIY. I„ 

12. To construct and keep in repair public wells or other 
watering places, and regulate the use thereof. 

what is a resonable time is a tact to be determined in the trial Mere delay in instituting pro- 
ceedings in the case, does not make him a wrong doer from the beginning. Drew v. SpauiaivAj, 
45 N. Hamp. R., 472. 

A person at his father's on a visit, impounded cattle found upon his father's farm, with the 
approbation of his father, who sent a boy to help him: held, that the son's act in impounding 
the cattle was, in legal effect, the act of his father. 

An impoumler of cattle lias a right to use the same force to maintain his possession 
of them that a sheriff has to protect his possession of property taken by him on legal process. A 
person who takes possession of cattle for the purpose of impounding them, does not, by after- 
wards abandoning his design, become a trespassers ab initio, as to become liable for force, which 
he used in defense of such possession before giving it up. Barrows v. Fassetl, 36 Vt. R., 625. 

Trover lies for an animal wrongly impounded) and under the general issue the 
defendant may show that the animal was unlawfully at large. Drew v. Spaulding, 45 N. Hamp. 
R., 472. 

When a statute provided for the impounding of animals found " wandering, stray- 
ing or lying" about the road: it was held, that horses grazing on the side of a turnpike, under 
the control of a man in charge of them, were not liable to be impounded under this provision. 
Morris v. Jeffries, Law Rep., 12 B., 291. 

Where an ordinance of a town prohibiting certain animals from running at large 
provided that any person, being the owner of or having the care of any such animal, who should 
suffer the same to run at large, should be subject to a penalty specified; in an action to recover 
the penalty for an alleged violation of the ordinance, the proof disclosed these facts: that the 
defendant lived on his farm outside of the limits of the town; that he had allowed the animals 
to run in a piece of woods near by, but that he watched and cared for them daily, and would 
have prevented them from straying into the town, on this the first instance, had he not been 
called away to the bedside of a dying brother. Held, that this evidence clearly exonerated the 
defendant from the charge of suffering his animals to run at large within the limits of the 
town; that to subject a person to the penalty under this ordinance, he must himself have par- 
ticipated in the act by suffering it to be done, which requires that he should have knowingly 
permitted his animals to run at large within the town, or have been guilty of such negligent 
conduct in enabling them to do so as would have been equivalent thereto. Town qf Collinsville 
V. Scanland, 58 111. R., 221. 

An ordinance of a town for distraining stock from running at lftrge, provided, among 
other things, that if the owner failed to reclaim them within a certain timti, " and pay all costs 
of impounding and the damages which the stock may have done — the damages to be assessed 
by three disinterested men, citizens of the town," they should be sold to satisfy such costs ami 
damages. Held, that the ordinance was unconstitutional and void: that the proceeding being 
one for damages, the owner was entitled to a trial by jury, the same as in any other case at law, 
and could not be deprived of such right. Bullock v. Geomble, 45 111. R., 218 ; Willis v. Segris, 
Id., 289. 

The law -which gives to towns the power to restrain or prohibit the running at 
large of certain animals, and authorizes the distraining, impounding and sale of the same for 
penalties incurred, and the costs of the proceedings, does not give to towns the power to 
confer upon any of its officers authority to make sales for impounding animals, except upon 
the contingency that penalties have been incurred. A proceeding to ascertain whether a pen- 
alty has been incurred, is one purely judicial in its character, and involves a power which can- 
not be exercised by the pound master by virtue of his office; nor can a town, by its by-laws 
authorize him to sell property to satisfy a forfeiture for the violation of a law or ordinance, 
without a judicial ascertainment that there has been such violation. And a sale of property by 
the pound master, without a judicial ascertainment being first had, will not divest the owner of 
his title. Poppen v. Holmes, 44 111. R., 360 ; Willis v. Segris, 45 111. R„ 2U3 ; Cate v. Cale, 44 N. Hamp. 
R. 211. 

In the case of Poppen v. Holmes, 44 111. R., 860, the court say, Lawrence, J.: 

It will be observed that the power to make sales is given only for penalties incurred and the 
costs of the proceedings, and a town cannot by its by-laws confer such authority upon its offi- 
cers in any other contingency. But to ascertain whether a penalty has been incurred or not, is 
a proceeding purely judicial in its character, and that power cannot be exercised by the pound 
master by virtue of his office. The by-law may impose a reasonable penalty for the offense of 
allowing animals tP run at large, may authorize the animals to be impounded, and may direct 
an inquiry to be had before a magistrate as to whether the penalty has been incurred, with a 
right of trial by jury. If it has been incurred, the magistrate may be directed to enter judg- 
ment against the owner for the penalty and costs, and an order directing the pound master to 
sell the property. If the owner is known, he should receive personal notice, and if not known, 
there may be constructive notice to him, as the unknown owner of the impounded property, by 
posting, the property being described in the notices. A by-law thus framed WGUld bo £ee from 
objection; but one which authorizes the pound master to sell property withons ^u&fcral »•».> 
tainment that some law has been violated, would confer upon the pound mb*s#f * ^^hw -»* 



AJIT. IV.] CORPORATE POWERS — TOWN MEETINGS. 59 

13. To prevent the deposit of night soil or other offensive sub- 
stances within the limits of the town. 



power never contemplated by the statute above quoted, to say nothing of constitutional objec- 
tions to its exercise. See, also, Willis v. Segris, 45 111. R., 289. 

In the absence of any express provision of law prescribing the mode of pro- 
ceeding to establish the fact that a penalty has been incurred, the court, in the foregoing case, 
held that such mode of proceeding may be provided by the town by-laws, and the court points 
out particularly the provisions that may be made. The following form of by-laws, and mode of 
proceeding concerning domestic animals running at large, are given as being in accordance 
with the suggestions of the court in the foregoing case : 

Form of By-laws Concerning Cattle and Other Animals Running at Large. 

The town of , in the county of , in the State of Illinois, by 

the electors thereof, duly assembled, do adopt the following by-laws : 

Section 1. No cattle, horses, mules, asses, swine, sheep or goats, shall 

hereafter be permitted to run at large in the town of , and it shall be 

unlawful for any animals of the species aforesaid to run at large in said 
town. 

Sec. 2. Any person owning any animals of the species aforesaid, who 
shall suffer or allow the same to run at large in said town, shall incur and 
be liable to a penalty of dollars for each and every day he shall suf- 
fer or allow any of his said animals to so run at large. 

Sec. 3. Whenever any animals named in the first section hereof are 
hereafter found running at large, it shall be the duty of the pound master 
to cause them to be taken and placed in the public pound. And it shall 
be lawful for any person to take such animals to the pound, and cause 
them to be impounded. 

Sec. 4. Whenever any such animals are placed in the pound, it shall be 
the duty of the pound master to make complaint at once to some justice 
of the peace of the town, and apply for proceedings to adjudge agaiust the 
owner the penalty incurred, stating the name of the owner, if known to 
him, and the number and kind of animals. If the owner is not known, 
then giving a description of the animals. 

Sec. 5. The justice shall thereupon issue a notice in writing to the 
owner of said animals, stating the facts of impounding, and fixing therein 

a time not exceeding days thereafter, when said complaint will be 

heard, which notice shall be served at least days before the time of 

hearing the complaint. In case the owner is not known, then the notice 
shall describe the animals, and be posted by the pound master in five public 
places of the town, for days before the time fixed for such hearing. 

Sec. 6. It shall be the duty of the pound master to attend before the 
justice at the time fixed for the hearing as aforesaid, and present the facts 
in the case. The cause shall be tried by a jury, unless waived by the 
owner, and shall be conducted as other causes of like nature are conducted 
before justices of the peace. If the owner is found guilty, the justice shall 
enter judgment against him for the penalty as herein prescribed, and costs, 
aud shall enter an order directing the pound master to sell the property to 
make the fine and costs. 

Sec. 7. Whenever animals are impounded, it shall be the duty of the 
pound master to supply them with proper food and drink during the time 
they remain. The value thereof, with services for feeding, to be shown on 
trial, shall be allowed as costs against the owner. 

Under the foregoing form of by-laws the act of allowing any number of animals to 
run at 
■eparate action should be brought in prosecuting for penal 



icier tne roregoing rorm or by-laws the act or allowing any number of animals to 
it iarjje for one day constitutes one offense. Each day will be a separate offense; for which 
■ate action should be brought in prosecuting for penalties. 

The complaint to the justice, under the foregoing form of by-laws, need not be in writing. 
8uth proi^euing is not required to be in writing, unless when so expressly provided. 



'60 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

14. To make all such by-laws, rules and regulations as may be 

deemed necessary to carry into effect the powers herein granted, 

Form, of Notice by Justice to Owner of Animals Impounded. 
ToA.B.: 

You are hereby notified that C. D., the pound master of the town of 

, has this day complained to me that on this day of , 

18 — , three cows, of which you are the owner, were found by him running 
at large in said town, at [state the place where], contrary to the by-lawn of 
the town, as he alleges, whereby you have incurred the penalty prescribed. 
That he did thereupon cause said cows to be impounded in the public 
pound of the town [if there are more than one pound, state which the ani- 
mals are in], where they now remain, and that said complaint will be 

heard before me at my office, in said town, on the day of , 18 — , 

at — o'clock — M. 

Witness my hand, this day of , A. D. 18 — . 

E. F. 
Justice of the Peace. 

The notice may be served by the pound master or any constable \ but In case the 
defendant does not appear, proof of the service should be made before the justice by the person 
-serving the notice, as in case of any other fact. 

-Form of Notice by Justice, Where Owner of Impounded Animals is not 

Known. 
To whom it may concern : 

The unknown owners of the animals, hereinafter described, are hereby 

notified that C. D., the pound master of the town of , has this day 

complained to me that on day of , 18 — , three cows, one a brin- 

dle, and two of a deep red color, each about six years old, of which the 
owner is unknown, were found by him running at large in said town, at 
[state the place where], contrary to the by-laws of the town, as he alleges, 
whereby the owner has incurred the penalty prescribed. That he did 
thereupon cause said animals to be impounded in the public pound of said 
town [if there are several pounds, state which the animals are in], where 
they now remain, and that said complaint will be heard before me at my 
office, in said town, on the day of , 18 — , at — o'clock, — M. 

Witness my hand this day of , 18 — . 

E. F., 
Justice of the Peace. 

Form of Docket Entry, on Hearing Complaint against Owner of Im- 
pounded Animals. 

St Countyo?^— } Before E - F -» Justice of the Peace. 

The Town of , ] 

vs. \ Complaint of C. D., pound master. 

A. B. J 

18 — , July 2, C. D., pound master, complains of A. B. for allowing three 
certain cows, of which said A. B. is the owner, to run at large, contrary to 

the by-laws of said town of , which animals he did this day cause to 

be impounded. Notice is issued to said A. B. that said complaint will be 
heard July 5, 18 — , at — o'clock, — M. Notice returned served on said A. 
B. at date, by pound master. 

July 5, — o'clock, — E., pound master appears, and makes proof of due 
service of notice on defendant ; said A. B. also appears; jury of twelve 
>m«.n summoned, and sworn to try the matter in issue. The allegations of 



ajvt. rv.] corporate powers — town meetings. 61 

and to impose such fines as shall be deemed proper, except when 
a fine or penalty is already allowed by law : Provided, no fine or 
penalty shall exceed $50 for one offense. (1) 

the parties, and proofs, are heard. The jury rind that the complaint herein 

is true, and assess a fine against said A. B. of dollars. Judgment is 

therefore rendered against said A. B. for said sum of dollars for said 

fine, and the costs herein taxed, at dollars and cents. And it is 

ordered that the pound master proceed and sell said animals impounded 
as aforesaid, to make the amount of said fine and costs, in accordance with 
the statute in such cases made and provided, unless the same shall be paid 
before the sale. 

E. F., 
Justice of the Peace. 

Pound master's sale. The law regulating sales of property by constables under execution, 
provides that the constable "shall appoint a day and hour for the sale of said property, giving 
ten days' previous notice of such sale, by advertisement in writing to be posted up at three of the 
most public places in the county; and on the day so appointed, the said constable shall sell the 
property so levied on, or so much thereof as may be necessary to pay the debt, interest and costs, 
to the highest bidder." Rev. Statutes, p. 650, § 88. See Haines' Treatise, new edition, p. 826, The 
property should be sold by the pound master, in the town, at some convenient public place to b« 
set forth in the notice of sale. The following may be the form of the notice of sale : 

Form of Pound Masters Notiee of Sale. 

POUND MASTER'S SALE. 

Notice is hereby given that the undersigned, pound master for the town 
of , in the county of , and State of Illinois, by virtue of au- 
thority in him vested, will on the day of , A. D. 18 — , at the 

hour of — o'clock — M., at [state place], in said town, offer for sale and 
sell to the highest bidder the following described animals, to-wit: [describe 
the animals particularly], said animals having been duly distrained and 

impounded for a fine of dollars, incurred in consequence of the same 

running at large in said town, contrary to the by-laws thereof. Said ani- 
mals will be sold as aforesaid, in satisfaction of said fine and costs of pro- 
ceedings. 

Dated this day of , A. D. 18— 

J.S., 

Pound Master. 

The pound master, in taking up animals and proceeding to sell them, must 
pursue the law and regulations of the tovrn strictly, or the proceedings will be invalid, and the 
purchaser, at his sale, will acquire no title to the property. Rex v. Crook, 1 Cowper R., 26; Clark 
v. Levru, 35 I1L R., 420. 

Under an ordinance of a town prohibiting the running at large of certain ani- 
mals, except at certain seasons of the year, and authorizing the impounding of the same, and 
their sale after giving notice, the pound master has no authority to act unless the animals are 
running at large, and at a time prohibited by the ordinance, and he will become a trespasser if 
he acts without authority. If he is sued for the property, he must prove that the animals were in 
that situation which the ordinance designated. The mere fact that he is an officer of the law is 
not sufficient; he must show that he acted lawfully. Nor can the purchaser, at a pound master's 
sale, establish his title against the former owner by mere proof of the sale; he must establish its 
validity by showing the authority, which cannot be presumed. Clark v. Lewis, 35 111. R^ 418. 

Where the ordinance requires that not less than ten days' notice shall be given 
before a sale of an impounded animal shall be made; this is an essential pre-requisite of such 
a sale, and can not be dispensed with by the officer. An abridgment of the time for the shortest 
period must avoid the sale. Nor can the sale be sustained where the pound master sells two ani- 
mals belonging to different owners, together at the same bidding. They should be sold separ- 
ately. Clark v. Lewix, 35 111. R., 418. 

(2) A by-lavr is a rule obligatory on a body of persons, or oveT a particular dis- 
trict, not being at variance with the general laws of the State, and being reasonable and adapted 
to the purposes of the corporation; and any rule or ordinance of a permanent character which a. 
corporation is empowered: to make, either by the common or statute law, is a by-law. It is a rule 



62 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

15. To apply all penalties, when collected, in such manner as 
may be deemed most to the interests of the town. [L. 1861, 
p. 221, § 5 ; p. 222, § 6 ; L. 1867, p. 173, § 3. 

Besides the foregoing powers, the electors may, in a general or a special 
town meeting, direct the disbursement or distribution of any surplus of any 
bond fund returned by the county on the cancellation of township bonds, as 
provided by the act of March 29, 1889. [See this act in Appendix.] The 
particular object for which such money may be expended must be deter- 
mined by the electors of the township. 

41. Exception as to cities and villages.] § 4. In towns in 
which there are incorporated cities or villages, the boundaries of 
which are co-extensive with the limits of the town, or the town 
lies wholly within the limits of an incorporated city or village, 
the electors shall not exercise the several powers contained in 
sub-divisions of section 3 of this article, namely : 3, 5, 6, 7, 8, 9, 
10, 11, 12 and 13 ; but all moneys necessary to be raised in such 
towns for town expenses shall be ascertained by the county board, 
and the county clerk shall extend the amount so ascertained 
upon the collectors' books of such towns, and, when collected, 

made prospectively and to be applied whenever the circumstances arise for which it is intended 
to provide. A by-law cannot impose an oath, unless empowered to do so, for that is contrary to 
the common law. By-laws are binding upon all the inhabitants of the town ; and every stranger, 
though merely coming within the limits of the town, is bound, at his peril, to take notice of all its 
by-laws, provided it is said the object of the by-laws be to suppress a general inconvenience or de- 
feat fraud. Grant on Corporation, 76, 77. 

In an action to recover a penalty for violating a by-law or ordinance of a town, 
It must appear affirmatively that the act complained of occurred after the by-law or ordinance 
took effect. It would be error to render judgment for the penalty without such proof. Debt is 
me proper form of action in such case. In bringing such action before a justice of the peace, 
which may be done where the amount does not exceed one hundred dollars, an affidavit or com- 
plaint in writing on which to base it is unnecessary. The action can be commenced in the same 
manner as an ordinary action of debt beli re a justice of the peace. The summons may be iu 
the usual form for civil cases. A bond fir costs, as in penal actions under the statute, is n<>t 
necessary. Town of Jacksonville v. Black et al., 36 I1L R., 5U7; Town of Leunston v. Proctor, 23 Hi. 
R., 533. 

Ordinances of a municipal corporation are binding upon all the inhabitants 
therein, and have all the force and effect oi laws. Jones v. Fireman's Ins, Co., 2 Daly (N. Y.) R., 307. 

• 

An ordinance which appears byt He records to have been passed, may be pre- 
sumed to have been passed by the full number of votes required, although the record does not 
affirmatively show that fact Lexington v. Headly, 5 Bush. (Ky.) R., 508. 

In a proceeding to recover a penalty for violating an ordinance of a municipal corpo- 
ration, proof is necessary of the existence of the ordinance. Stevens v. Chicago. 48 ILL R., 498. 
To warrant a conviction for violation of an ordinance there must be proof that the act was com- 
mitted within the limits of the town. See Taylor v. Americus, 39 Ga. R., 59. 

A penalty incurred under tbe by-law of a town made to prohibit horses from 
going at large, etc., may be enforced after the expiration of the period it was intended to regulate. 
Stevens v. Diinond, 6 N. Hainp. R., 330. 

A person upon -whom a nue is imposed for violation of a town ordinance cannot 
be committed to prison, or held by the officer, upon the mere verbal order of the magistrate, 
president and Trustees of Odell v. Schroeder et ux., 58 111. R., 353. 

It is erroneous to issue execution on a judgment against a municipal corporation. Id. 

Section 83 of the school law of 1873 did not repeal so much of the township or- 
ganization law as authorized towns organized thereunder to appropriate to their own use penal- 
ties tecovered in suits prosecuted by such towns for violation or their town by-laws, and that the 
fines and penalties which it was designed to appropriate to the school fund, were such as would 
otherwise accrue to the people of the state for the violation of a public statute. Opinion Att' j 
Wen. Edsall, March 23, 1873. 



ART. IV.] CORPORATE POWERS — TOWN MEETINGS. 63 

the same shall be paid over to the town supervisors the same as 
in other towns, and the powers and provisions of all cities and 
villages under their organic law shall not be repealed by any of 
the provisions of this article. 

NOTICE OF BY-LAWS, ETC., TAKING EFFECT. 

42. § 5. It shall be the duty of the town clerk to cause all by- 
laws, rules and regulations of the town, within twenty days after 
their adoption, to be published, by posting in three public places 
in the town ; also by causing the same to be in serted once in a 
newspaper published in the town, if any there shall be ; but all such 
by-laws, rules and regulations shall take effect and be in force 
from the date of being adopted, unless otherwise directed by the 
electors of the town. [L. 1861, p. 222, § 7. 

EFFECT OF CERTAIN CONVEYANCES. 

43. § 6. Every conveyance or lease of land made to any person 
or persons in any manner, for the use and benefit of a town or its 
inhabitants, shall have the same effect as if made to the town by 
its corporate name. [L. 1861, p. 218, § 3. 

HOW CONVEYANCES MADE. 

44. § 7. When any conveyance of real estate is made by a 
town, the deed shall recite the order of town meeting directing the 
same (which recital shall be prima facie evidence of the making 
and contents of such order), and the deed shall be signed by the 
supervisor, in his official capacity, and attested by the clerk of the 
town, unless the meeting shall have ordered that the same be 
made by some other officers or persons. (1) 



(1) Form of Deed of Conveyance by Town, 

This indenture, made this day of , A. D. 18 — , between the 

town of , in the county of- , and State of Illinois, party of the 

first part, and C. D., of , party of the second part, witnesseth : 

That, whereas, at the annual town meeting of said town of , duly 

held on the day of , A. D., 18 — , &t , in said town, an order 

was made by said town meeting in the words following, to-wit : 

Ordered that [set forth the words of the order. The deed should also 
recite a compliance with the conditions of the order.] 

Now, therefore, the said party of the first part, in consideration of said 

sum of dollars duly paid, the receipt whereof is hereby acknowledged, 

has remised, released, sold, conveyed and confirmed, and by these pres- 
ents does remise, release, sell, convey and confirm unto the said party of 

the second part, heirs and assigns forever, all the right, title, interest, 

claim and demand which the said party of the first part has in and to the 



64 TOWNSHIP ORGANIZATION ACT. [©IT. L 



AETICLE V. 



LEGAL PROCEEDINGS IN FAVOR OF AND AGAINST A TOWN. 

Section. 

45. How conducted— Service. 

46. In what name suits brought. 

47. Who competent as witnesses and jurors. 

48. Jurisdiction of justices. 

49. Petition of town lands. 

50. Costs— Judgments against town. 

45. How conducted— Service.] § 1. Whenever any controversy 
or cause of action shall exist between any towns of this state, or 
between any town and an individual or corporation, such pro- 
ceedings may be had either at law or equity for the purpose of 
trying and finally settling such controversy, and may be conducted 
in the same manner, and the judgment or decree therein shall 
have the like effect as in other suits or proceedings of a similar 
kind between individuals and corporations. All process shall be 
served by leaving a copy of the writ or summons with the super- 
visor.(l) [L. 1861, p. 234, § 1, 4. 

46- In what name suits brought.] § 2. In all such suits or 
proceedings, the town shall sue and be sued by its name, except 
where town officers shall be authorized by law to sue in their name 
of office for the benefit of the town.(2) [L. 1861, p. 234, § 2. 

following described lot, piece or parcel of land, situate in the county 

of , and State of Illinois : [describe the premises] to have and to hold 

the same, together with all and singular the appurtenances and privileges 
thereunto belonging, or in anywise thereunto appertaining, and all the 
estate, right, title, interest and claim whatever, of the said party of the 
fl rst part, either in law or equity, to the only proper use, benefit and 
behoof of the said party of the second part, heirs and assigns for- 
ever. 

In witness whereof, A. B., supervisor of said town of , has here- 
unto set his hand in behalf of said town, and affixed a scroll hereto in the 
place of a seal, and this indenture is attested by the town clerk, the day 
and year first above written. 

A. B., [seal.] 

Attest: E. F., Supervisor of the town of . 

Town Clerk. 
Such deed should be acknowledged as other deeds of conveyance. 

(1) Towns furnishing reasonable supplies to paupers belonging to other towns, 
tnny generally recover what they have bona fide paid. Southbridge v. Charlton, 15 Mass. R., 24>S. 

A n Individual Inhabitant of a town, being of course a party to a suit brought against 
the town, has the right to appear and defend such suit. Union v. Crawford, 19 Conn. R., 33L 

The supervisor would seem to Have authority to employ an attorney to conduct 
the defense of suits brought against the town, for whose services the town would be liable. 
Sucfi was the construction of the law of 1861. Cooper et al. v. Delavan, 61 111. R., 96. 

(2) Town officers, in bringing suits, should do so in their name of office, without the ad- 
dition of their individal names. Should tows officers, such as commissioners of highways, suv 



ART. V.] LEGAL PROCEEDINGS. 65 

47. Who competent as witnesses and jurors.] § 3. On the 

trial of every action in which the town is a party or interested, the 
electors and inhabitants of such town shall be competent witnesses 
and jurors, except that in suits and proceedings by one town 
against another, no inhabitant of either town shall be a juror. 
[L. 1861, p. 234, § 5 ; p. 230, § 2. 

48. Jurisdiction of justices.] § 4. Any action in favor of a 
town, which, if brought by an individual, could be prosecuted be- 
fore a justice of the peace, may be prosecuted by the town in like 
manner before any such justice. (1) [L. 1861, p. 234, § 6. 

49. Partition of town lands.] § 5. Whenever by any decree 
or decision in any suit or proceeding brought to settle any con- 
troversy in relation to town commons, or other lands, the com- 
mon property of a town, or for the partition thereof, the right of 
any town shall be settled and confirmed, the court in which such 
proceedings shall be had may partition such lands according to 
the rights of the parties. [L. 1861, p. 235, § 8. 

50. Costs— Judgment against town.] § 6. In all suits or pro- 
ceedings prosecuted by or against town officers, in their name of 
office, costs shall be recovered as in like cases between individu- 
als. Judgments recovered against a town or against town offi- 
cers, in actions prosecuted by or against them, in their name of 

in their individual names as such town officers, and their term of office expires pending the pro- 
ceeding, the suit would abate, as these persons would no longer act in an official character, and 
hence could not further maintain the suit in that capacity. And it may be a serious question 
whether the suit could be revived in the names of their successors; and if it could, then the 
same difficulty would present itself in case their predecessors had acted willfully or maliciously, 
In rendering judgment, so as to hold them liable, as the successors could not be made person- 
ally responsible for the malice or neglect of their predecessors. A judgment against a person 
not then holding a town office would not bind the town. If against the successor of him who 
committed the wrong he could urge that he did not omit the duty. Highway Comrs. of Rut- 
land v. Highway Comrs. of Dayton, 60 111. R, 68. 

The town supervisor may defend a suit against a town, and prosecute an appeal, with- 
out a special authority from the town. Haner v. Polk, 6 Wis. R., 360. Town of Partridge v Sny- 
der, 78 111. R., 519. 

A town may bring an action in its own name, on a contract made for its benefit with an au- 
thorized agent Garland v* Reynolds, 20 Maine R., 45. 

An agent of the town, to prosecute and defend suits only, has no authority to settle 
them; and for any promise made by him in compromise he is personally liable if the party act 
on the faith thereof Clay v. Wright, 44 Vt. R.. 538. 

The admissibility of the confessions of an agent to charge his principal, applies to 
the officers and agents of a town. Burlington v. Calais, 1 Vt. R., 471. 

If a suit is brought in the corporate name of the township, it is not necessary to allege 
In the declaration that the township has been incorporated. Moms v. Trustees of Schools, 16 IIL 
R.,266. 

(1) A town may appeal from the judgment of a justice of the peace. The appeal 
bond should be executed by the supervisor ot the town. Gardiner v. Town of Chamber$burg, 19 
UL R., 99. Town of Partridge v. Snyder, 78 111. R., 519. 

The bond in case of appeal by a town should be in the form prescribed by the statute. 
See Hadies' Treatise, Title, "Appeal and Certiorari," commencing thus, "Know all men by 
tnese present, that we the town of (name of town) and (name of security) ;" concluding thus, 

" Witness the hand and seal of A. B., supervisor of said town of , this day of , 

18 — ." The supervisor should sign his name to the bond, adding his title of office — supervisor— 
and affix his seal as in case of an individual. 

5 



66 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

office, shall be a town charge, and when collected, shall be paid to the 
person or persons to whom the same shall have been adjudged. (1) L. 
1861, p. 235, I 9. 



ARTICLE VI. 

TOWNSHIP MEETING AND ELECTION. 



51. 


Annual meeting and election 


57. Special township meeting 


52. 


Notice thereof 


58. Notice thereof 


53, 


Election precincts 


59. Restrictions 


54. 


Place of meeting 


60. Powers of special township meetings 


56. 


Judges of election 





51. Annual township meeting and election.] § 1. The 

annual township meeting for the transaction of the business of the town- 
ship [and the election of township officers] shall be held on the first 
Tuesday in April of every year. (2) 

52. Notice thereof] I 2. Notice of the time and place of the 
township meeting, [and of the time and place, or places, of the township 
election, ] shall be given by the township clerk, or, in his absence, by the 
supervisor, assessor or collector, by posting written or printed notices in 
three of the .most public places in [each election precinct of] the town- 
ship(3) at least ten days prior to the day of meeting [and election] and 
if there be published in the township a newspaper, by at least one publi- 
cation therein prior to the appointed day. (4) 



\-i. / ■• mmvsmm, w» »-v vv mm J% v«m»^*.M. v^ mr -—/mm. m.«s«^w* m.m-%sj ill t* OLUb 4XJ. At* V \JL V/l VI Kfli J |fl 

the town is legally holden to pay the attorney's services, without an express vote to that effect] 
and the rule is the same ( if the town agent being himself an attorney, renders professional servi- 



(1) When a town agent employs an attorney in a suit in favor of or against the town, 

\e town is legally holden to pay the attorney's servir— 
■Jid the rule is the same, if the town agent being hin 
eta for the town. Langdon v. Castleton, 20 Vt R. ( 285. 

(2) The constitution declares that "the day of holding the a.Tmna.1 township meeting 
shall be uniform throughout the State." Const., Art. 10, 2 5. 

(3) The provision of the general election law requiring " three notices for each precinct or dis- 
trict in which the election is to be held " is applicable to township elections. See T 68, p. 76, post, 

and 1 40, p. 475 post. 

(4) Form of Notice of Annual Township Meeting and Election. 

The election of township officers being no longer a matter incident to the 
township meeting, but a distinct proceeding to be conducted in the manner of 
general "elections, it is essential that notice should be given of each. This may 
be done in a single notice substantially in the following form: 

ANNUAL TOWNSHIP MEETING AND ELECTION. 

NOTICE is hereby given to the legal voters, residents of the Township of 
County of , Illinois, that the annual town- 
ship meeting and election of officers of said township will take place Tuesdav, 

the day of April proximo, being the first Tuesday in said month. 

THE ELECTION will begin at the hour of 7 A. M. and close at 5 P. M. in 
the places designated as follows: 

Precinct No. 1 

Precinct No. 2 



ART. VI.] TOWN MEETING. 67 

53. Election precincts.] I 3. Each township shall, for the 
purposes of town meetings, constitute an election precinct. [L. 1861, 
p. 261, I 1. 

[This section of the act of 1861 is no longer operative, excepting in 
the restricted sense that any township which contains less than 450 
electors is, per se, an election precinct. The law now requires that every 
township, and every election precinct, whenever it is found to contain 
450 or more electors, shall be partitioned by the count} T board in pre- 
cincts containing, as nearly as may be, 400 electors, but not in any case 
more than 450. See p. 472, post, H 30.] 

54. Place Of meeting.] § 4. The place of holding elections shall be some con- 
venient place in the town, to be fixed by the electors, at their annual town meeting. [L. 1861, p. 
265, § I. 

55. Chailge Of place Of meeting.] § 5. Whenever it is desired to change 
the place of holding town meetings, and any twenty-five electors shall, before the time of giving 
notice of an annual town meeting, file with the town clerk a request in writing that a change be 
made, designaiing the place to which the change is desired, a notice of such request shall be 
included in the notices of such meeting, and the electors may vote for or against such proposition. 
The ballots for the proposed change shall read! "For changing the place of holding town meetings 
to- (name of place proposed);" those against shall read: "Against changing the place of holding 
town meetings;" and if a majority of all the votes cast for and against such change shall be in 
favor of changing to the place designated, the place shall be so changed. (1) 

[The preceding sections ( H and I 5) have been repealed by effect of 
the amending act of May 25, 1889. See p. 75, post, H 67. The place 
of holding the township meeting and the place or places of voting for 
township officers, are to be designated and changed by the county board ; 
nevertheless, a resolution adopted in town meeting requesting the county 
board to designate a particular place for holding the town meeting would 

[and so on, if the township contain more than two precincts.] 
The officers to be elected are: 
One Supervisor, 

Assistant Supervisor, 

One Township Clerk, 
One Assessor, 
One Collector, 

One Commissioner of Highways, in Highway District No 

Justices of the Peace, 

Constables, and 

Schooi Trustees. 

And the electors will also vote to decide the following public question: 
Shall [state the question.] 

THE TOWN MEETING will open in at the hour of 2 P. M., 

and after choosing a Moderator will proceed to hear and consider reports of 
officers, to appropriate money to defray the necessary expenses of the town- 
ship, and to deliberate and decide on such measures as may, in pursuance of 
law. come before the meeting. 
And especially to consider a proposition to [state the special proposition, if any] 

Given under my hand this day of , A. D. 

'•_ . .Township Clerk. 

The law requiring notice of the annual town meeting to be given is directory. The law 
fixes the time. and the pace is fixed by the county board, of which every one is bound to take 



68 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

be proper, and probably would be granted by that body. Where a 
township has erected a town hall, the right to have all township meetings 
held therein would seem to be superior to any capricious decision of the 
county board fixing a different place.] 

56. Ex-officio judges of election.] §6. The supervisor, asses- 
sor and collector of the township shall be ex-ofiicio judges of all elec- 
tions in their township, except as otherwise provided by law. 

[It is otherwise provided in all cases, excepting when the township in 
its entirety constitutes an election precinct. In all other cases the 
inspectors (judges) of election for the several precincts are to be 
appointed by the county board. See general election law, p. 473. post, 
IT 33. The meaning is that the township elections in township of more 
than one precinct, shall be conducted by the inspectors appointed by the 
county board for general elections.] 



notice; therefore a failure to give the notice, as directed by the law, will not invalidate the meet- 
ing. 6 Hill R., 646 ; 3 Denio R., 526. See Angell & Ames on Corp., g 488. People v. Peck, 11 Wend. 
R.,694. 

Where the law requires notice of an election to be given, and the law itself doe? 
not fix the time and place of the same, but leaves that to be fixed in the notice of election, such 
notice given in substantial compliance with the law is essential to the validity of the election. 
Cooley on Const. Limitations, 602 and notes ; State v. Young, 4 Iowa R., 561. But when both the 
time and place of the election and the officers to be elected are prescribed by law, the validity of 
the election will be sustained, although the notice prescribed by law was not given. Ibid. See 
also, People v. Cowles, 13 New York R.; People v. Jones, 19 Iowa R^ People v. Hartwell, 12 Mich. R, 
508.; Opinion Atty. Genl Edsall, March 11, 1878. 

At the first town meeting in new towns, three commissioners of highways are 
to be elected, whose term of office is to be decided by lot. See Art 1, g 16, ante, p. 38. 

In givine public notice, in the computation of time, the rule is, when an act is to 
be performed within a particular period, or on a particular day, from and after a certain day, to 
exclude the day named and include the day on which the act is to be done; or more concisely 
stated, it is to count one day in and the other out. Thus, in giving ten days' notice of an elec- 
tion or event to take place on the 10th of the month, the notice must be given or posted on the 
last day of the preceding month, in order to give ten days' notice. Evring v. Bailey, 2 Scam. R^ 
420; Hall v. Jones, 28 111. R., 55; Harper et al. v. Ely et al., 56 111. R., 179. 

Bequest by Twenty-five Electors for Change of Place 
Town Meetings. 

To the Town Clerk of the town of : 

The undersigned, twenty-five electors of said town of , do request 

that a change be made in the place of holding the town meetings of said 
town to [set forth the place to which the change is desired]. 
Dated this day of , 18—. 

Notice of Bequest to be Included in the Notice of Town Meeting 

To vote on the question of changing the place of holding town meetings 

to [set forth the place to which the change is desired } as in the request] , a 

request for that purpose, by twenty-five electors, having been duly filed 

with the town clerk. 



ART. VI.] TOWN MEETINGS. 69 



SPECIAL TOWN MEETINGS. 

57. When called.] § 7. Special town meetings shall be held, 
when the supervisor, town clerk and a justice of the peace, or any 
two of said officers, together with at least fifteen voters of the 
town, shall file in the office of the town clerk a statement, in 
writing, that a special meeting is necessary for the interests of 
the town, and setting forth the objects of the meeting. (2) ]L. 
1861, p. 222, § 8. 

58. Notice.] § 8. Notice of such special town meeting shall 
be given in the same manner and for the same length of time as 
other town meetings. (3) [L. 1861, p. 222, § 8. 



(2) Form of Statement to be Filed in the Office of Town Clerk for Special 

Town Meeting. 

The undersigned, town officers and fifteen voters of the town of , 

in the county of , do state that a special town meeting is necessary 

for the interest of said town for the purpose of [here set forth the object of 
the meeting]. 
We would therefore request that immediate notice be given thereof, and 

that such meeting be held on the day of , A. D. 18 — . 

Witness our hands this day of , A. D. 18—. 

L. B., Supervisor. 
S. W. M., Town Clerk. 
C S., Justice of the Peace. 
[Names of fifteen voters] of the Town. 

It Is not necessary that the statement tor a special town meeting should be 
addressed to any person. The statute does not require it Baldwin v. North Bradford, 82 Conn. 
R., 47. 

In the statement for a special town meeting it is only necessary to set forth the 

objects with such reasonable certainty as will notify all interested of the objects for which the 
meeting is called, and the time and place of meeting. Alger v. Carry, 40 Vt. R., 437. 

As to -who are voters of the town, and qualified to join in the statement for a special 
town meeting, is a question which the town clerk may determine. His decision that they are 
voters is conclusive for purposes of the town meeting. State v. Town of Lime, 23 Minn. R., 522. 

To render a special town meeting legal, it should appear that a statement, as re- 
quired by law, that the meeting was necessary, was filed in the office of the town clerk. The 
record of a special town meeting, reciting the filing of the proper statement, would be sufficient 
prima facie to show such fact Brown v. Witham, 51 Maine R., 29; Lemington v. Blodgett, 87 I1L 
R, 210. 

(3) Form of Notice for Holding Special Town Meeting. 

SPECIAL TOWN MEETING. 

Whereas, the supervisor, town clerk and a justice of the peace [or a% the 

case may be], together with fifteen voters of the town of , have, in 

writing, filed in my office a statement that a special town meeting is neces- 
sary for the interest of said town, setting forth the object of the meeting. 

The legal voters and electors of the said town of are therefore 

hereby notified that a special town meeting will be held at , on the 



70 TOWNSHIP OKGANIZATION ACT. [DIY. I. 

59. Form of notice — Restriction.] § 9. The notice shall set 
forth the object of the meeting, as contained in the statement filed 
with the town clerk, and no business shall be clone at a special 
meeticg except such as is embraced in such statement and notice. 
[L. 1861, p. 222, § 8 ; p. 223, § 9. 

60. Powers of special meeting.] § 10. The electors at special 
town meetings, when convened, shall have power :(1) 

1. To fill Tacancies in the offices of town officers, when the same 
shall not have already been filled by appointment. 

— — dav of , A. D. 18 — , to commence at 

for the purposes following, to-wit : 
To [here enumerate specifically, in proper order, the subjects to be acted 
upon as contained in the statement filed]. 

Being the objects contained in the said statement filed in my office. 

Given under my hand at , this day of , A. D. 18 — . 

S. W. M., Town Clerk. 

The town clerk, In giving notice of a special town meeting, performs a mere 
ministeral duty, and the electors cannot be limited in their action at the meeting by the phrase- 
ology of the notice, provided the statement of the objects for which the meeting is called is sub- 
ftantially correct. Ball v. Warren, 36 Conn. R., 83. 

The presumption is, that the number of notices required by law have been duly 

posted. State v. Town of Lime, 23 Minn. R., 521. 

It is no objection to the legality of a town meeting, that the notices therefor were 
not posted in the places where such notices had usually been posted in the town, it not appear- 
ing but that they were posted in public places, as required by the statute. Stoddard v. Oilman, 22 
Vt R., 568. 

(1) Special town meetings have no jurisdiction to act upon any subject not specially 
conferred upon such meetings by law. The powers conferred upon the electors at the annual 
town meeting cannot be extended by implication to special town meetings. People v. Works, 7 
Wend. R., 486. By the statute of New York, special town meetings have power to supply vacan- 
cies in certain cases ; to raise moneys for the support of common schools, or the poor, when 
those subjects were not acted upon at the annual town meeting ; and to deliberate in regard to 
suits for or against the town, and to raise moneys therefor. And it is decided that they have no 
other power. See same case before cited. This decision will apply to the statute of Illinois. It 
will be observed, however, that special town meetings have authority to act upon any subject 
within the powers of the electors at the annual town meeting where the subject was postponed 
for the consideration of a special meeting. When it is desired to postpone the consideration of 
any subject to a subsequent special town meeting, the proposition should be reduced to writing 
in the form of a resolution or order, and being adopted by the meeting, should be recorded by 
the clerk upon the minutes of the proceedings of the meeting, that in case of controversy it may 
be shown with certainty what subjects were postponed or laid over. Such resolution may be in 
the following form : 

Form of Resolution Postponing Subject for Special Town Meeting. 
Resolved, That the subject of [state the subject briefly'] being under con- 
sideration at this the annual town meeting, 18 — , for the town of , 

and there not being time to consider the same, it is postponed, to be con- 
sidered at a future special town meeting that may be called for that purpose. 

A town meeting specially called to vote a tax for a given purpose is not au- 
thorized to act upon any subject beyond a vote upon such tax. Atwood v. Lincoln, 44 Vt. R., 332. 

Special town meetings may he held to vote on the question of borrowing money to 
bund bridges. See Div. II, "Roads and Bridges," g 20, post. 

Special town meetings may he called to nil vacancies in town offices, where 
the same have not been filled by appointment ; but if the vacancy has been filled by appoint- 
ment, it cannot be filled by special election. Township Organization Laws, Art. IV, § 9; Opinion 
Attorney General Edsall, May 23, 1873, citing People v. Van House, 18 Wend. R.. 515. 

The inhabitants of a town cannot avoid being bound by their vote, at a meeting 
legally called, by proof that the vote was passed near the close of the meeting, and after a por- 
tion of the voters had retired. Bean v. Jay, 23 Maine R., 117. 



XRT. VTI.] MODE OF C0NDUCTDT3 ELECTIONS. 71 



2. To provide for raising money for repairing highways, or 

building or repairing bridges, in cases of emergency, and to direet 
the building and repairing thereof. 

3. To act upon any subject within the powers of the electors at 

any annual town meeting, which may have been postponed for 
want of time at the preceding annual town meeting, to be con- 
sidered at a future town meeting. [L. 1861, p. 223, § 9. 

AKTICLE VII. 

TOWN OFFICERS ELECTED BY BALLOT — MODE OF CONDUCTING ELECTIONS 
FOB TOWN OFFICERS. 



61. Election of officers.] § 1. At the annual town meeting in 
each town there shall be elected by ballot one supervisor, (who 
shall be, ex-officio, overseer of the poor,) one town clerk, one asses- 
sor and one collector, who shall severally hold their offices for one 
vear, and until their successors are elected and qualified, and such 
justices of the peace, constables and highway commissioners as 
are provided by law : Provided, that in any town, or any city not 
included within the limits of any town (except in Cook county'), 
having four thousand inhabitants, there shall be elected one addi- 
tional supervisor, to be styled assistant supervisor ; in towns hav- 
ing six thousand five hundred inhabitants, there shall be elected 
two assistant supervisors, and so, for every additional twenty-five 
hundred inhabitants, there shall be elected one additional super- 
visor — the population of towns to be ascertained by the last fed- 
eral or state census preceding the election, (1) or town census to be 
raken as follows : In any year when a federal or state census is not 
taken, the town auditors of any town may, in their discretion, cause a 
census of their town to be taken by some competent person resident ot 
s«id town, who may be appointed for such purpose by the town 
auditors ; and the person so appointed shall, before entering upon me 
duties of such office, take and subscribe an oath of office in the manner 
as town officers, and it shall be the duty of said person to take and 
make a correct and true list of all persons residing m said town, and 
such list when completed shall be returned to said town auditor- and 
filed in the town clerk's office. And if such census shows such town w 
contain four thousand inhabitants, then an additional supervisor tor 
such town shall be elected, as provided by law. And such person so 
taking such census shall be allowed a reasonable compensation for such 
services by said town auditors. [Act of June 15 1887, to amend this 
section.l Provided, that nothing in this act shall be so construed as to 
diminish the representation that any city or town may now be entitled 



72 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

to by law. But in case such city or town is now entitled to a greater 
representation than is given by this section, it shall be entitled to no ad- 
ditional representation under this section; and the members of the 
board of supervisors from such city or town now provided for by 
law shall continue to be elected as now required by law.(l) And, 
provided, further, that whenever the representation of any city or 
town is or shall become less than is given by this section, no in- 
creased representation under any special act shall be had by such 
city or town, but its representation shall be as provided for in this 
3ection.(2) See Rev. Stat., "Justices and Constables," ch. 79, § L 

In relation to the tenure of supervisors, the foregoing provision has been 
modified by the act of June 4, 1889, which provides that the supervisors elected 
in the year 1890, in counties then under township organization, and in the 
first election of township officers in counties that may afterward adopt town- 
ship organization, shall, at the first meeting of the county board after such 
election, be divided by lot into two classes, each class to contain one-half of 
the members of such board as near as may be. If any town have two or more 
supervisors, they must be separately classified so as to be divided between the 
two classes. Those of the first class hold for one year and those of the second 
for two years, and in both classes their successors shall hold during two 
years. If the two classes should be numerically unequal, the smaller number 
will constitute the second class. Whenever a new town is erected, the same 
rule and mode of classification shall apply ; but if the new town is formed by 
the union of two old ones, the supervisors then in office shall serve until the 
next annual town election, but no longer. 



(1) Where the representation of any town in the county board was less under 
any special act than the representation provided by the law of 1S74, the special act is by that 
law expressly superceded and made to cease to operate, and it matters not that the exclusive 
representation of a city which is a part of a town, is less by the act of 1874 than under the special 
act, or be taken away entirely, so that that of the town in which the city is situated be increased. 
Alien v. The People ex rel., 84 111. R., 502. 

(2) The number of commissioners of highways of a town is three. The term of 
office is three years. At the first town meeting three commissioners are elected, and the term of 
office of each is agreed upon by lot, so that one expires every year, and thereby there is one 
commissioner to be elected at every annual town meeting. See ante p. 38, Art. I, g 16. 

If a town fails or neglects to elect the number of justices or constables to which 
it would be entitled under the law, and should elect a less number, having had a full number 
for the preceding term, this would oust all those of the previous term ; neither could hold over 
on the ground that no one had been elected in his place. People v. Jones, 17 Wend. R., 81. 

Whether a person can hold more than one town office at the same time is a ques- 
tion frequently raised. In the absence of any express prohibition by the statute, one person 
could hold such offices at the same time as are not incompatible with each other. At common 
law the only offices incompatible with each other were such as were subordinate and interfering, 
as where one was judicial, and the other ministerial, and the latter was directly subordinate to 
the former. Citing Bouv. Law Diet., 4 Sergt & Rawle ; Opin. Att'y Gen'l Cole (Minn.), VoL 1, 
p. 260. 

The acceptance of a second office incompatible -with the first, vacates the first 
office. People v. Carrique, 2 Hill. R., 93. 

Although a majority of the electors of a town may not attend and vote at a 
town meeting, yet persons receiving a majority of the votes of those that attend, for offices, will 
be legally elected. Opin. Att'y Genl Cole (Minn.), vol. 1, p. 296. And although a town meeting 
may be invalid by reason of irregularity, yet the town officers elected at such meeting are offi- 
cers de facto, and as such their acts are binding on the town. Gushing v. Frankfort, 57 Maine 
R.54L 



.AST. Til.] MODE OF CONDUCTING ELECTIONS. tS 

■ 61a. Trustees of schools.] In counties adoping township organi- 
zation, in each and every township whose boundaries coincide and are 
identical with those of the town, as established under the township 
organization laws, the trustee or trustees [of schools] shall be elected at 
the same time and in the same manner as the town officers; and all the 
ejections heretofore held at such time and in such manner in such town- 
ships are hereby legalized, and in all such townships, if no trustees are 
elected at the stated town meeting, and when vacancies occur in the 
board, an election of trustee or trustees shall be ordered by the trustees 
of schools, through the township treasurer, as provided in the twenty - 
fifth section of this act. [School act, K, S. ch. 122, art. in, I 19. 

Commissioner of highways.] In counties under township organiza- 
tion there shall be elected in each town, at the annual township election 
each year, one commissioner of highways, who shall hold his office three 
years, and until his successor is elected and qualified. [L. 1875, 
p. 111. I 1. 

62. Organizing township meeting — moderator.] I 2. The 

electors present, at [the appointed hour] of the clay on which there is an 
annual or special town meeting, shall be called to order b}^ the town 
clerk, if there be one; in case there be none, or he is not present, then 
the voters may elect, by acclamation, one of their number chairman. 
They shall then proceed to choose one of their number to preside as 
moderator of such town meeting. [L. 1861, p. 223, I 1. 

[The hour fixed by the statute for the opening of the annual town 
meeting is 2 p. m. ■ • At such meeting, a moderator shall be chosen to 
preside, by the electors present, and the township clerk shall act as 
clerk of said meeting and keep a record of the proceedings thereof.' 7 
See r 67. p. 75. post. The hour of 2 P. M. having arrived, it is the 
duty of the township clerk to call the meeting to order and take the 
chair as temporary president and conduct the proceeding of choosing the 
moderator. In case the clerk should be absent, any elector present ma}' 
call the meetiug to order and move that A. B. act as chairman to con- 
duct that proceeding. Whether a town meeting ma} T , for sufficient 
reason, adjourn from the place appointed to a more com^enient place is a 
question that has not been raised since the transfer of the authority to 
fix the place from the township electorate to the county board. But. 
on the general principle that a legislative body is the judge of its own 
organic necessities, doubtless such action ma\ T be taken after the meet- 
ing has been duly organized, and sufficient time given for the arrival 
aad full expression of a quorum of the electorate. To render such 
adjournment to another place legal and binding on the township, ample 
notice should be posted on the door of the hall where the organization 
was effected, so that any electors arriving after the adjournment may 
know whither to proceed. But there seems to be no authority for an 
adjournment to another day.] 



74 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

63. PoWerS Of moderator.] § 3. The moderator so chosen shall have the 
.same power and be subjected to the same penalties as other judges of election. 

[As the law now is, the moderator is not a judge of the election, but 
chairman or "speaker" of the town meeting. (See art. viii, "Mode 
of conducting town meetings — note.) In the early practice of New 
England, no one could speak without his permission, and he could impose 
fines for disorderly behavior and compel refractory persons to withdraw. 
These powers still pertain to the office. (See H 81 , post. ) As the town 
officers where chosen viva voce by the electors in public assembly, lie 
was the real judge of the election. This function of the moderator was 
preserved after the introduction of the ballot system b} r the requirement 
that, when the voting closed, all the ballot boxes should be brought 
from the several precincts to the place where the ; ; miscellaneous busi- 
ness " of the town was transacted. All the votes were there counted and 
the moderator officiated as president of the canvassing board. But the 
statute of 1889 (H 67, I 7, on the following page.) constituting the 
inspectors in each precinct a canvassing board for the precinct, has 
divested the moderator of the character and faculty of an inspector or 
judge of the election, leaving to him only the function of president of 
the township (legislative) assembly.] 

64. Oath of moderator.] § 4. Before the moderator of any 
town meeting shall enter upon the duties of his office, he shall 
take an oath faithfully and impartially to discharge the duties of 
such office — which oath may be administered by the town clerk, 
or other proper officer.(l) [L. 1861, p. 223, § 2. 

(1) Form of Oath of Moderator of Town Meeting. 
I do solemnly swear [or affirm, as the case may be,~\ that I will support 
the Constitution of the United States, and the Constitution of the State of 
Illinois, and that I will faithfully and impartially discharge the duties of 
the office of moderator at this town meeting, according to the best or my 
ability. 

The foregoing form of oath of moderator comprises the form prescribed by the Con- 
stitution for official oaths in all cases, with the addition of the words "and impartially," as re- 
quired by the above section. If the position of moderator is an office, these words are unneces- 
sary. See Const., Art. 5, Sec. 25. 

The clerk should make a record upon the minutes of the meeting of the fact that the modern 
tor was duly sworn before entering upon the duties of his office. 

Where, in pursuance of law, an oath of office is administered in open town 
meeting, in presence of the town clerk, the clerk's record of the fact is competent evidence of 
the administration of the oath. Briggs v. Murdock, 13 Pick. R., 305. 

The neglect of the moderator or clerk to take the oath as prescribed, would net. 
It seems, vitiate the election of officers at town meeting. An oath irregularly administered, ''or 
example, upon a book other than the Holy Bible, the parties administering it, and taking it, sup- 
posing it a Bible, is a valid oath. People v. Cook, 4 Seld. R., 67. 



ART. VII. J MODE OF CONDUCTING ELECTIONS. 75 



65. Clerk — Minutes.] § 5. The town clerk last before elected 
or appointed, shall be the clerk of the town meeting, and shall 
keep iaithful minutes of its proceedings, in which he shall enter, 
at length, every order or direction, and all rules and regulations 
made by such meeting. [L. 1861, p. 223, § 3. 

66. Clerk pro tern.] § 6. If the town clerk be absent, then 
such person as shall be chosen for that purpose by the electors 
present, shall act as clerk of the meeting. [L. 1861, p. 224, § 4 

67. Precincts — Judges to count Totes.] § 7. The town 

shall supply a suitable ballot box or boxes, to be kept and used in 
like manner as ballot boxes in other elections. Incorporated towns or 
incorporated villages whose limits are co-extensive with the limits of 
a town, or in any organized town where the number of voters at 
the last preceding general election exceeded four hundred and fifty, 
the county board may require one or more additional ballot boxes and 
places for the reception of votes to be provided, which places shall be 
selected with reference to the convenience of the electors of the town, 
and the county board in such cases shall designate at which of said poll- 
ing places the miscellaneous business of the town shall be transacted, 
and shall appoint three persons in each precinct to serve as judges of 
election: Provided, however, that in towns which lie wholly within the 
limits of an incorporated city and in any town whose territorial limits 
are co-extensive with the territorial limits of any incorporated city, 
village or incorporated town, the common council of such city, or the 
board of trustees of such incorporated village or town shall divide 
such towns into election precincts and designate the voting place in each 
precinct, and appoint three judges of election for each precinct, who 
may be the same persons as are appointed as judges of election for 
city, town or village officers, held on the same day; and shall also 
designate the place where the miscellaneous business of the town shall 
be transacted. In such towns, it shall be lawful to print or write the 
names of candidates for city and township officers, on one ballot, and 
use only one ballot box at each voting place. And in all towns that 
are thus divided into voting precincts, it shall be the duty of the town 
clerk, or if there be no town clerk, it shall be the duty of the county 
clerk to post up, in three of the most public places of the town, a notice 
of each of the places in the town where the county board, city council 
or board of trustees has directed and required the election to be held, 
and of the place de3ignated for the transaction of the miscellaneous 
business of the town. The town meeting for the transaction of such 
miscellaneous business in such towns shall be held at the hour of two 
o'clock in the afternoon of said day. At such meeting, a moderator 
shall be chosen to preside, by the electors present, and the town clerk 
shall act as clerk of said meeting, and keep a record of the proceed- 
ings thereof. The judges of election, in their respective precincts, shall 
cause two persons having similar qualifications with themselves to act 



76 TOWNSHIP OEGANIZATION ACT. [DIV. 



as clerks of such election, and said judges and clerks shall conduct 
such election as nearly as may be in accordance with the general elec- 
tion laws of this state so far as applicable, except that no registration 
of voters shall be required ; and immediately upon closing the polls, 
they shall canvass the votes polled in the manner provided in the gen- 
eral election law of the state, and make a written statement or certifi- 
cate of the number of votes cast at such election for each person voted for, 
and the office for which such person received such votes, and shall, 
within forty -eight hours thereafter, cause such certificate and the poll- 
lists, together with the ballots cast at such election to be separately 
sealed up and transmitted to the clerk of the town. The supervisor, 
together with the assessor and collector, shall, within five days there- 
after, meet and canvass said returns and declare the result of said elec- 
tion. (1) [Act of May 25, 1889. 

This act of May, 1889, in no manner amends or affects " an act regulating the 
holding of elections in cities, villages and incorporated towns," known as the 
Chicago election act and not segnant in any other municipality. 

68. General election laws to apply.] § 8. The general laws 
of the State in regard to elections and qualifications of voters shall 
apply to all elections to be held under this act, so far as the same may 
be applicable, except as herein otherwise provided: Provided, that no 
greistration of voters shall be required. (2) 

(1) Tlie county ooard in designating separate places for receiving votes at a town 
election, cannot meet and have a verbal understanding where the places shall be. In the case of a 
city council exercising like authority, it was held that the council should take such formal action 
before the election that citizens could know from its records where the election was to be held, and 
that this must be done a sufficient length of time in advance to enable the town clerk to give notice 
•of the election. The People v. Gouchenour, 54 111. E., 123. 

(2) The general law in regard to elections and qualification of voters is to be ob- 
served, with limited exceptions, in conducting all elections under this act. This is required by 
the above section, and it is to some extent a new principle in the township organization system 
in this State. As the law formerly existed, the election of town officers was a matter incident to 
a town meeting, and was under the control of the electors. But by the terms of this act the 
election of town officers is regarded as a separate proceeding, to be conducted in the manner of 
general elections. This act provides that the supervisor, assessor and collector of the town shall 
be judges of all elections in their town, except as otherwise provided by law. See ante, p. 68, Art. 
VI., § 6. There is no provision of law regulating elections in this regard in towns, whether for 
town officers or otherwise, except the general election law. It seems to be the intention of this act, 
as drawn from its various provisions, that the election of such town officers as is required by law 
to be by ballot shall be conducted under the charge of the regular judges of election of the town, in 
connection with the moderator of the town meeting; it beingprovidedthat the moderator shall have 
the same power as other judges of election. See ante, p. 73, Art. VII., § 3. See post "Elections." 

It is further provided by this act (ante, p. 37, Art. I. § 12), that the county board shall appoint 
three electors to the town to be judges of election at the first town election (meaning the election 
at the first town meeting) in said town. If, therefore, it is considered necessary to have judges 
of election at the first town meeting, these officers are equally as important at all subsequent town 
meetings at which elections are held. This being the intention of the law, the moderator and the 
three regular judges of election of the town will form a board of judges of election, and take 
charge of the ballot-box, and conduct the election of town officers and canvass the ballots the same 
as at any other election under the general election law of the State. For duties of judges of elec- 
tions, qualification of voters, canvassing votes and manner of conducting the election of town 
officers, see the general election law, post, "Elections." 

"When one moves into a town, or, being a resident in a town, arrives at full age he 
at once becomes a member of the corporate body, without any other act, and without his consent. 
Lord v. Chamberlain, 2 Me. E., (2 Grnl.) 69; Richmond v. Vassalborough, 5 Me. E., (5 Grnl.), 342. 



ART. VII.] MODE OF CONDUCTING ELECTIONS. 



OJ. JLiCCOSS.J § 9. A recess may be taken during the time necessary for the trans- 
action of the business of the town other than the election of officers by ballot. 

70. ReSlllt Of eleCtiOllS.] § 10. The canvass being completed, a statement of 
the result shall be entered at length by the clerk of the meeting in the minutes of the proceedings. 
to be kept by him as before required, which shall be publicly read by him to the meeting; and such 
reading shall be deemed notice of the result of ihe election to every person whose name shall be 
entered on the poll list as a voter. (1) L. 1861, p. 226, § 22. 

[The foregoing section 9 fl[ 69) has been repealed by effect of the act 
of May 20, 1889, (see fl 67, ante.) Section 10 (T 70) is no longer 
applicable to the township officers which the statute says shall be elected 
by ballot, i. e., supervisor, clerk, assessor, collector, highway commis- 
sioners, justices, constables and trustees of schools. If applicable at 
all, it is only to road overseers, poundmasters, and such other function- 
aries as may be chosen at the town meeting, or appointed in such man- 
ner as the town meeting may, by ordinance or resolution, direct,] 



(1) The law seems to contemplate that a canvas of votes shall be made in 
like manner as prescribed by the general, election law of the state. See "Elec- 
tions," post. The following may be the form of the canvas: 

Form of Canvas of Votes by Precinct Inspectors. 

At an election in the precinct, township of , in the 

county of .., and state of Illinois, held at. ..in said 

precinct, on the day of April, in the year A. D. , the following named 

persons received the number of votes annexed to their respective names for 
the following described offices, to-wit: 

P. R. had votes for Supervisor. 

W. R. had votes for Supervisor. 

O. H. had votes for Township Clerk. 

J. S. had votes for Township Clerk. 

L. M. had votes for Highway Commissioner. 

[and in the same manner for any other persons voted for.] 
Certified bv us. 

A. B., ) 
(Clerks sign here.) C. D., } Inspectors of Election. 

E. F., ) 

[This precinct canvas, with poll lists and ballots, must be returned within 48 
hours to the township clerk. See H 67, p. 75, 76, ante.] 

Form of Statement of Result of Canvas by Township Returning Board. 

The following is a statement of the result of the canvas of votes by ballot, 

for the election of officers at the township election in the township of. ., 

in the county of , state of Illinois, the day of , 

A. D , as canvassed by the township returning board: 

H. G. had votes for Supervisor. 

N. C. had votes for Supervisor. 

C. T had votes for Township Clerk. 

T. J. had votes for Township Clerk. 

G. N. had votes for Highway Commissioner. 

[and so on, giving a statement of the vote cast for each person.] 

A. Y., \ Township 
(Clerks sign here.) B.W., J- Returning 

G. V., Board. 



78 TOWNSHIP ORGANIZATION ACT. [DIV. I, 

71. Tie vote.] 3 11. In case two or more persons shall have an 
equal number of votes for the same office, the question of which shall 
be entitled to the office shall be decided between such person by lot, 
under the direction of the town clerk, but he shall give each party notice 
of the time and place of drawing lots. (1) L. 1861, p. 226, \ 22. 

72. PerSOnS elected notified.] § 12, The clerk of every town meeting, 
within ten days thereafter, shall transmit to each person elected 10 any towD office, whose name 
shall not have been entered on the poll list as a voter, a notice of his election. 

[This section has been modified by the effect of later statutes which 
separate the township election from the township meeting. Every 
township officer elect is to be officially notified - of his election. (See 
form of notice, p. 79.) The note below relates to road overseers, etc., 
chosen in the town meeting.] 



Where no certificate or other formal mode of making known to a person his elec- 
tion to a public office is required by law, the result of the election as ascertained and announced 
at the close thereof is conclusive upon the election of officers, and cannot afterwards be recon- 
sidered or varied. State v. Warren, 1 Houston, Del. R., 39. 

(1) Form of Notice by Town Clerk of Drawing Lots in case of a Tie VoU 
Between Candidates. 
To J. 8. : 
Sir — You having received, at the late town election, an equal number 

of votes with D. K. for the office of Supervisor, of the town of , are 

hereby notified that the question of which of you is entitled to said office 
will be decided by lot at my office in said town, on the day of , 

A. D. 18 — , at the hour of ten o'clock in the forenoon; that, should you 
fail to appear at such time and place, the matter will be decided in your 

Dated at , this day of , A. D. 18—. 

J. B. f Town Clerk. 

"Where the candidates are present at the announcement of the tie vote at town 
meeting, verbal notice may be given them by the clerk, informally, and the drawing lota take 

Slace at once, or at some convenient time named. No method of proceeding is prescribed iu 
eciding the question between candidates, but the drawing is under the direction of the town 
clerk; he will therefore direct the manner in which to proceed. He may prepare two pieces of 
paper, on one may be written the title or name of the office in question, leaving the other blank ; 
then fold each alike and place them in a box, from which let the candidates draw ; the person 
drawing the paper containing the name of the office to be entitled to it and declared duly 
elected. In case the candidates, or either of them, fail to attend upon being notified, then the 
clerk can 6elect some qualified elector to draw for the absent candidate. 

It is proper that some record should be made by the town clerk of the manner ©.< 
disposing ot the question of a tie vote between candidates, that the records of the town m»y 
always 6how who are elected officers. It would therefore be well for the clerk to add a memo 
randum at the close of the minutes of proceedings of the meeting, after the signatures of him- 
self and the presiding officer, in the following form : 

Form of Memorandum of Decision oj Tie Vote between Candidates. 

At the annual town election in the town of , in the year 18 — , A. 

B. and C. D. having had an equal number of votes for the office of , 

the question of which should be entitled to said office, was, on the 

day of , 18 — , duly decided between them by lot, and it was decided 

that the said A. B. should be entitled to said office. 

J. B., Town Clerk- 



ART. VIII.] MODE OF CONDUCTING TOWN MEETINGS. 7!) 

73. List of town officers filed with county clerk.] I 13. The 

town clerk shall file in the office of the count}' clerk a list of the names 
of all township officers elected at the annual township election, within 
twenty days after such election shall be held. [L. 1861, p. 226, I 24. 



ARTICLE VIII. 

THE MODE OF CONDUCTING THE TOWNSHIP MEETING. (2) 

74. Hour of meeting, etc. 79. Division of voters 

75. Clerk of meeting — record 80. Reconsidering motions 

76. Clerk pro tern. 31. Disorderly conduct 

77. Duties of moderator 82. Who may participate 

78. Motions, how decided 

74. H0Ur Of meeting, etC.] § i. At the hour of two o'clock in the afternoon, 
on the day of an annual or special meeting, the polls shall be closed, and the moderator shall call 
the meeting to order for the transaction of miscellaneous business. [L. 1861. 

[As the law now is, the town meeting only begins a 2 P. M. , at which 
hour the moderator or president of the meeting is chosen. The election 
is not to be suspended nor the polls closed between 7 A. M. and 5 P.M., 
but the voting for candidates to fill the township offices proceeds else- 
where while the town meeting is in session.] 



Notice by Township Clerk to a person elected to a township office. 

To G. N., Esq., of the township of , in the county of : 

You are hereby notified that at the annual election [or special, as the case 

may be] held in said townstiip at , on the day of , 

A. D. , you were duly elected to the office of 

Given under my hand at... , this day of , A. D 

J. B., Town Clerk. 

(2) Rules for to-vrn meetings. Town meetings, provided by this act, are convention* or 

assemblies of the legal voters of the town, forming what is termed deliberative assemblies, for the 
transaction of business pertaining to their local interests — exercising certain powers, not dele- 
gated to their representatives, each elector appearing and acting for himself, and being account- 
able to no one for his acts. Meetings of this kind are conducted according to certain rules which 
experience has shown to be fit and necessary for that purpose. The rules necessary in conduct- 
ing the ordinary business of a town meeting are few and simple, and are such as would occur to 
the good sense of every man of ordinary intelligence. In disposing of business properly and 
with dispatch much depends upon the moderator or presiding officer; if he thoroughly under- 
stands his duties, and performs them properly and promptly, he will greatly facilitate the busi- 
ness of the meeting. The general duties of the presiding officer, as laid down in the books oi 
parliamentary practice, are the following : 



80 TOWNSHIP ORGANIZATION ACT. [DIV. L 



75. Clerk of meeting— Record.] § 2. The town clerk, if there 
be one and he is present, shall act as clerk of the meeting, and 

To open the sitting, at the time to which the assembly is adjourned, by taking the chair and 
calling the members to order. 

To announce the business before the assembly in the order in which it is to be acted upon. 
To receive and submit, in the proper manner, all motions and propositions presented by the 
members. 

To put to vote all questions which are regularly moved, or necessarily arise in the course of the 
proceedings, and to announce the result. 

To restrain the members, when engaged in debate, within the rules of order. 

To enforce on all occasions, the observance of order and decorum among members. 

To receive all messages and other communications, and announce them to the assembly. 

To inform the assembly, when necessary, or when referred to for the purpose, on points of order 
or practice. 

To name the members (when directed to do so in a particular case, or when it is made a part 
of his general duty, by a rule,) who are to serve on committees; and, in general. 

To represent and stand for the assembly, declaring its will, and, in all things, obeying implicitly 
its commands. Cashing' s Manual. 

The principal duties of the moderator are briefly defined by this act to be: to preside 
at the town meeting; to make announcement of the business of the meeting; to preserve order, 
and to decide all questions of order. To ascertain and declare the result of votes taken on all 
questions. To suppress disorderly conduct. 

After the meeting Is organized, hy the election ana qualification of the proper 
officers, the moderator should announce that the meeting is organized and ready to proceed to 
business — 

In the absence of any rule to the contrary, it will 
be proper for tne moderator to direct the order in which the various subjects for action should 
be taken up, and announce each as it comes up in its order for action. 

It is the practice with all legislative assemblies to adopt standing rules for their government, 
which the presiding officer is to observe and enforce. It would not be improper lor the electors 
of a town at a town meeting to pursue a similar course, and adopt standing rules regulating the 
order of business and the manner of conducting all town meetings, not inconsistent with the 
law, to be observed and enforced by the moderator; this would greatly facilitate business, secure 
uniformity and relieve the moderator from embarrassment in arranging the order of business at 
each meeting. 

The rules governing the conduct of deliberative assemblies are called " parliamentary rules." 
They are so called from their origin in the English Parliament. These rules, in process of time, 
as a whole have become very extensive, and, indeed, somewhat intricate. In conducting a town 
meeting it would be impracticable to attempt to observe that nicety in regard to these rules 
which is adhered to in legislative assemblies. 

An important feature in parliamentary practice is, that the sense of the meeting is taken 
through the agency of a motion, made by some member and seconded by another. After a mo- 
tion is thus made and seconded, the presiding officer proceeds promptly to state it to the meeting, 
thus: " Gentlemen, it is moved that" [stating the motion as made]. " Those in favor of this mo- 
tion will say aye." " Those opposed will say no." If the motion prevails, he should announce 
the vote thus : " It is carried in the affirmative," or, " The motion has prevailed." If the motion 
fails, then say, " The motion is lost." 

After the moderator has thus declared the vote, it becomes the sense of the meeting, and will 
stand as such until rescinded or reconsidered by another motion made for that purpose. 

Where a vote is nearly equal, and it is difficult to determine the result, the moderator should 
not hastily declare the vote, but should say : " The ayes seem to have it," or, " The noes seem to 
have it" If no one interposes, he will declare the result as it seems to him. If any one wishes 
to interpose, deeming that it seems to the moderator differently from the fact, he should do so 
by promptly calling for a division. This may be done by a " show of hands," by rising; or by 
literally dividing the house— that is, those voting in the affirmative all going to one side of the 
room, and those in the negative going to the other. After the vote has been declared by the 
presiding officer, it is too late to call for a division. 

It is a general rule that a motion to lay a proposition on the table and a motion to adjourn is 
not open to debate. But otherwise with a motion to lay on the table for a time limited, or to ad- 
journ to a day certain. 

The moderator should be prompt in putting motions. It is no part of his duty to invite 
debate. 

Parliamentary rules, as existing by custom, may be modified by rules fixed by the assembly. 

On the subject oi parliamentary law generally, see APPENDIX, post. 



ART. VIII.] MODE OF CONDUCTING MEETINGS, 81 

shall keep faithful minutes of the proceedings, in a book to be known 
as the town record, in which he shall enter at length every order or 
direction, and all rules and regulations made by such meeting, which 
entry shall be signed by himself and the moderator of the meeting. (1) 
L. 1861, p. 223, I 3. 

(1) Record of Proceedings of Annual Township Meeting. 

The annual township meeting of the township of , county of _, 

Illinois, convened in. the day of... , A. D , at the hour 

of 2 P. M. 

Meeting called to order by , Township Clerk. 

On motion of ., Mr. was duly chosen moderator, and 

being first duly sworn by , J. P., [or township clerk, as the fact may 

be] assumed the chair. 

The moderator having stated that the first business in order was the hearing 
of the annual reports of township officers, such reports were read and action 
taken thereon in the following order: 

Supervisor's fiscal report read by the clerk, received, and on motion 
of , approved, placed on file and ordered to be published. 

[The township clerk will read the report of each township officer who is by 
law required to submit an annual statement of his official doings. When a 
report has been read, the proper motion is tnat it be received, but in general 
practice it is received without such motion unless objection is made, in which 
case a formal vote on the reception is necessary. (See Haines' Parliamentary 
Law.) When received, the question is, shall it be approved or adopted, etc. 
The statute provides that "each and every officer who shall have the custody 
of public funds shall, on the expiration of each fiscal year, prepare a statement 

of the funds received and expended by him during the year, and such officer 

shall cause such statement to be published in some newspaper of the county," 
etc. An order to publish would seem, therefore, to be unnecessary.] 

The moderator announced as next in order, petitions, resolutions and by-laws. 

Mr. submitted an order for the establishment and erection of 

a pound at within sixty days from this date, for the impounding 

of animals; that the same be constructed at a cost not to exceed dollars, 

under the direction of the poundmaster, who shall submit all bills lor the same, 
verified by oath, to the ooard of auditors. Agreed to without a division. 

[When a division of the assembly is ordered on a question of importance, a 
more satisfactory mode than the count by rising or holding up hands would be 
by tellers between whom should pass and be counted first the ayes and then 
the noes, as in the house of representatives. One teller should represent the 
affirmative, the other the negative, side of the question. In case tellers be 
appointed, the fact and their names should appear in the minutes.] 
"By Mr the following resolution [set forth the same.] Adopted. 

By Mr an ordinance to [set forth the ordin ance in full. J Referred 

to a special committee with instruction to report to a special meeting to be 
called the last week in August. 

[In like manner set forth the proceedings in each order of procedure as they 
transpire. For appropriate rules of procedure, see the Township Clerk's 
Manual, pp. 40. 41, 42. The record of every meeting should be signed.] 

A. J. M., Township Clerk. J. W. C, Moderator. 

In case there Is no town clerk, or he Is absent, at the opening of the town meeting, the 
entiy in the minutes of the meeting may be as follows : 

The town clerk not being present [or as the case may fee], on motion 
Mr. L. M., one of the voters present, was elected by acclamation as chair- 
man, whereupon the electors proceeded to choose one of their number to 
preside as moderator of the meeting, and Mr. A. B. was chosen as such 
moderator. 

The moderator may be chosen by ballot; this mode of choosing moderator Is the role in some 
of the eastern States, where the position is considered an important one, and the choosing is 
often zealously contested, 

6 



82 TOWNSHIP ORGANIZATION ACT. [DIY. L 

76. Clerk pro tern.] § 3. If there is no such clerk present, the 
meeting shall choose a clerk pro tem., who shall take a like oath 
as that required of the moderator, and shall act as clerk of the 
meeting.(l) [L. 1861, p. 224, § 4. 

77. Duties of Moderator.] § 4. The moderator of such meet- 
ing shall preside thereat, make announcement of the business be- 
fore the meeting, preserve order, and decide all questions of order. 
[L. 1861, p. 224, § 5. 

78. Motions — How Decided.] § 5. All questions upon motions 
made at town meetings shall be determined by a majority of the 
electors present and voting, and the moderator shall ascertain and 
declare the result of the vote upon each question. (2) L. 1861, p. 
224, § 6. 

79. Division of voters.] § 6. When the result of any vote 
shall, upon such declaration, be questioned by one or more of the 

In case of choosing a clerk pro tem (time being) of the meeting, the following may be the form 
of entry In the minutes : 

The town clerk being absent, E. F. was chosen clerk pro tern,, and was 
duly sworn. 

It seems that the clerk's record of the proceedings of a town meeting will be considered suffi- 
cient evidence of the facts therein set forth, as transpiring at that meeting. Briggs v. Murdoch, 18 
Pick. R., 805. 

It is competent for a town clerk to rectify errors which he has made In record- 
ing the proceedings of the town, by amending the record, so that it shall state those proceedings 
truly. Boston Turnpike Co. v. Pomfort, 20 Conn. R., 590 ; Chamberlain v. Dover, 13 Maine R., 466. 

Town records may be amended by the person who was in the office at the time of the 

eroceedings had, when the record is to be used as evidence in a suit in court, provided satisfac- 
>ry evidence can be shown of the truth of the facts alleged. Cass v. Bellows, 31 N. Hamp. (11 
Fost.) R., 501 ; Low v, Pettingil, 12 N. Hamp. R., 337 ; Pierce v. Richardson, 37 N. Hamp. R^ 306. 

One formerly a town clerk cannot, after lie has left the office, amend a town 
record made by him when clerk. Hartwell v. Inhabitants of Littleton, 13 Pick. (Mass.) R^ 229. 
But held otherwise in New Hampshire. Gibson v. Bailey, 9 N. Hamp. R., 168. 

A town clerk may amend a record, according to the truth, made by him when In 
office under a former election. WeUs v. Batelle, 11 Mass. R., 477. The intervening election is 
held to be substantially a continuance of the clerk in the same office. Hartwell v. Littleton, 13 
Pick. R., 229. 

A town clerks' record of proceedings of a town meeting, as amended by him- 
self, cannot be controlled by parol evidence. Halleck v. Boylston, 117 Mass. R„ 469. 

A -writ of mandamus will Issue to compel a town clerk to record the proceed- 
ings of a town meeting, as publicly declared by the moderator; also, to correct his record to con- 
form to such declaration. Hill v, Goodwin, 56 N. Hamp. R., 44. 

(1) A certified copy of the proceedings of a town meeting, as kept and reported by 

a clerk pro tem to the town clerk, is admissible in evidence to show the vote of the meeting. 
Hickok v. Shelbourne, 41 Vt R\, 409. 

(2) At a town meeting the balloting -was carried on in a room within a house, 
and & resolution being proposed and drawn up in the presence of the presiding officers, by their 
direction, the clerk proceeded outside of the building where most of the persons attending the 
town meeting were, and, in the presence of one of the presiding officers, there put the motion, 
and it was by him or the presiding officer declared carried, and no one made objection. Held, 
that the resolution was duly passed. People r. Tabor, 21 How. (N. Y. Pr., 42. 

Votes of a town at town meeting, unless carried into execution so that Indi- 
vidual rights have vested, may be altered or rescinded by subsequent meetings. Denton v. Jack- 
ton, 2 Johns. Ch. R., 820. 

A town meeting cannot properly audit accounts against the town. This duty is 
eonferred on town auditors. People v. Onondaga, 16 Mich. R., 254. See Art. 2£IIL, 1 4, post, 



**T. Vm.] MODE OF CONDUCTING TOWN MEETINGS. 83 

electors present, the moderator shall make the vote certain by caus- 
ing the voters to rise and be counted, or by dividing off. L. 1861, 
p. 224, § 5. 

80. Miscellaneous business closed— Reconsidering motions.] 

§ 7. When the business of the meeting is cod eluded, the modera- 
tor shall make announcement thereof, and after such announce- 
ment is made all miscellaneous business shall be deemed concluded 
for that day, unless the electors shall, at the time of such an- 
nouncement, order otherwise ; but in no event shall any question 
which has been disposed of before such announcement be there- 
after reconsidered, unless the motion therefor is sustained by a 
number of votes equal to at least a majority of all the names en- 
tered on the poll list on that day up to the time of making such 
motion. [L. 1861, p. 224, § 7. 

81. Disorderly conduct.] § 8. If any person shall conduct in 
a disorderly manner at any such meeting, and, after notice from 
the moderator, shall persist therein, the moderator may order him 
to withdraw therefrom, and on his refusing may order any consta- 
ble or other person to take him from the meeting and confine him 
in some convenient place until the meeting is adjourned ; and the 
person so refusing to withdraw, shall, for such offense, forfeit a 
sum not exceeding $10, for the use of the town, to be recovered in 
an action of debt in the name of the town, before any justice of 
the peace of the town.(l) [L. 1861, p. 224, § 8. 

82. Qualification of voters.] § 9. No person shall be allowed 
to vote or participate in any such meeting unless he shall be a 
qualified elector of such town.(2) L. 1861, p. 214; § 9. 

(1) The order of the moderator to take a person from the meeting for disorderly 

conduct, need not be in writing, but may be given to the constable, or other person, verbally; 
but if it is desired to recover the forfeiture or penalty provided for, it will be an independent 
matter, and must be prosecuted as in other cases of fines or penalties going to the town. Parsons 
v. Brainerd, 17 Wend. R., 522. 

The proceedings to collect a fine for disorderly conduct at town meeting, the law 
contemplates shall be conducted like any ordinary suit before a justice of the peace. The pro- 
cess may be the general form of summons prescribed by the statute. See Haines' Tkeatise, new 
edition, p. 182. 

Held, in Massachusetts, an indictable offense to violently and rudely disturb a town meeting. 
Commonwealth v. Hoxey. 16 Mass. R., 385. Or to give in more than a single vote upon one ballot- 
ing for town officers. Commonwealth v. Silsbee, 9 Mass. R., 417; Walker v. Winn, 8 Mass. R., 248; 
Bradley v. Heath, 12 Pick. (Mass.) R., 163. 

(2) As to who are qualified electors of the town, the Constitution of Illinois, Alt 
IV., entitled "Suffrage," declares: 

Section I. Every person having resided In this State one year, in the county ninety days, and 
In the election district thirty days next preceding any election therein, who was an elector in this 
8tate on the first day of April, in the year of our Lord one thousand eight hundred and forty -eight, 
or obtained a certificate of naturalization before any court of record in this State prior to the first 
day of January, in the year of our Lord one thousand eight hundred and seventy, or who shall 
be a male citizen of the United States above the age of twenty-one years, shall be entitled to vote 
at such election. 

Sec. 2. All votes shall be by ballot 

Sec. 3. Electors shall, In all cases, except treason, felony, or breach of the peace, be privileged 
from arrest during their attendance at elections, and in going n> and returning from the same 



84 TOWNSHIP ORGANIZATION ACT. [UFV. I. 



83. Proceeding With election.] § 10 . When the miscellaneous business of 
that day shall have been transacted, the moderator shall announce the polls of the election open, 
and the election shall proceed. 

[This section has been annulled bv the effect of the amending act of 
May 25, 1889. See H 67, p. 75, ante.] 

AETICLE IX. 

QUALIFICATION AND TENURE OF OFFICE. 

Section. 

84. Who eligible to office. 

85. Qualifying. 

86. Neglect to qualify. 

87. Poundmaster— Notice of acceptance. 

88. Collector— Bond. 

89. Failure of collector to give bond. 

90. Supervisor, etc., refusing to serve. 

91. Entering upon office before taking oath. 

92. Term of office. 

93. Successor to demand books, etc. 

94. Demand in case of vacancy. 

95. Out going officer to deliver over. 

96. Demand upon executors, etc. 

84. Eligible to office.] § 1. No person shall be eligible to any 
town office unless he shall be a legal voter, and have been one 
year a resident of such town.(l) [L. 1861, p. 226, § 1. 

And no elector shall be obliged to do military duty on the days of election, except in the time of 
war or public danger. 

Sec. 4. No elector shall be deemed to have lost his residence in this State by reason of his ab- 
sence on the business of the United States or of this State, or in the military or naval service of 
the United States. 

Sec. 5. No soldier, seaman, or marine in the army or navy of the United States, shall be deemed 
a resident of this State In consequence of being stationed therein. 

Sec 6. No person shall be elected or appointed to any office in this State, civil or military, who 
Is not a citizen of the United States, and who shall not have resided in this State one year next 
preceding the election or appointment. 

Sec. 7. The General Assembly shall pass laws excluding from the right of ■uffrage persons 
convicted of infamous crimes. 
, See also Div. " Elections," gg 65, 66, post 

(1) Town officers must be inhabitants of tbe town in which they are chosen, and 
they cease to be officers when they cease to be inhabitants. Bane v. Greenwich, 1 Pick. R., 120. 

No person is eligible to a town office unless be baa been a resident of the town for 
one year next preceding the time ot his election. Where L. t in the year 1860, was a resident of 
the town of Cicero; in 1861 removed his family to the city of Chicago, adjoining the town; in 
the same year entered the army, leaving his family in Chicago; In 1864 had a farm and lived in 
Missouri; in March, 1866, returned to Cicero, and in November was chosen a constable of the 
town. Held, that his residence could only be counted from March preceding the election; 
therefore he could not hold the office legally. Laimbeer v. The People ex rel., 48 111. K., 490. 

Tbe right to an office cannot be determined by an action of replevin of its appur- 
tenances. Desmond v. McCarthy, 17 Iowa R., 525. 

And an officer de facto is entitled to the possession of his office during the pro- 
oedlngs to oust him from it. Leach v. Cassidy, 28 Ind. R., 449. 

A town officer can perform no official act outside of and beyond the territorial 
limits in which he Is authorized and required to act, unless expressly authorized by law. An 
*sses8or not being authorized to assess property out of his township, cannot lawfully administer 



AitT. TK. ] QUALIFICATION AND TENURE OF OFFICE. 85 

85. Qualifying.] § 2. Every person elected or appointed to 
the office of supervisor, town clerk, assessor, commissioner of 
highways or collector, before he enters upon the duties of his 
office, and within ten days after he shall be notified of his election 
or appointment, shall take and subscribe, before some justice of 
the peace or town clerk, the oath or affirmation of office pre- 
scribed by the constitution, which shall, within eight days thereaf- 
ter, be filed in the office of the town clerk. (2) L. 1861, p. 226, 
§2,3. 

86. Neglect to qualify.] § 3. If any person elected or ap- 
pointed to either of the offices alcove enumerated shall neglect to 
take and subscribe such oath, and cause the certificate to be filed 
as above required, such neglect shall be deemed a refusal to serve. 
[L. 1861, p. 227, § 4. 

87. Pound master — Notice of acceptance.] § 4. Every person 
elected or appointed to the office of pound master, before ne en- 
ters on the duties of his office, and within ten days after he shall 

an oath to a person, except In his township In relation to his rights and credits liable to assess- 
ment. Fan Duzen v. The People, 78 111. R., 645. 

(2) The term c * notified " as used in the law, would seem to import a formal notice, and 
not mere knowledge on the part of the person notified. Polvrine's Appeal, 51 Conn. R., 887. 

Form of Oath to be Taken and Subscribed by Town Officer. 

State of Illinois, 

County. 

I, A. B., do solemnly swear [or affirm, as the case may be~\ that I will, 
support the constitution of the United States and the constitution of the 
State of Illinois, and that I will faithfully discharge the duties of the 
office [here insert the title of the office'] according to the best of my ability. 

A. B. 

Taken and subscribed before me this day of , A. D. 18—. 

C. D., Town Clerk. 

The foregoing U the general form of official oath prescribed by the Constitution. 
Art. V., Sec. 25. 

Supervisors are required (See Div. " Counties and County Affairs," Sec. 52, post,) to lay before 
the board of supervisors, at their first meeting after the annual town election, certificates of their 
election; each supervisor will, therefore, after his qualification, be entitled to a certificate of his 
election, which should be issued by the town clerk, and may be in the following form: 

Form of Supervisor's Certificate of Election. 
County, 



Town of 

I, J. G., town clerk of said town of , do hereby certify that at the 

election in said town, on the day of , 

A. D. 18 — , W. H. was duly elected supervisor of said town, or was, on 

the day of , A. D. 18—, duly appointed, etc.] ; that he has been 

duly qualified as such by taking the oath of office and giving bond as re- 
quired by law. 

In witness whereof I have hereunto set my hand this day of 

A. D. 18—. 

J. D., Town Clerk. 



86 TOWNSHIP ORGANIZATION ACT. f Dlt. t 

have been notified of his election or appointment, shall cause to 
be filed in the office of the town clerk a notice signifying his ac- 
ceptance of such ofiice. A neglect to cause such notice to be filed 
shall be deemed a refusal to serve. (1) L. 1861, p. 227, § 5. 

88. Collector-^Bond.] § 5. Every person elected to the ofiice 
of collector, before he enters upon the duties of his ofiice, shall 
give the bond required by law.(2) [L. 1861, p. 227, § 6. 

89. Failure of collector to give bond.] § 6. If any person 
elected to the ofiice of collector shall not give such security and 
take such oath as is required above, within the time limited for 
that purpose, such neglect shall be deemed a refusal to serve. [L. 
1861, p. 228, § 12. 

(1) Form of Notice of Acceptance of Overseer of Highways or Pound Master. 

To S. L., Town Clerk of the town of : 

Sir — Having been elected [or appointed] overseer of highways for dis- 
trict No. , in said town [or pound master for said town, as the case 

may be], on the day of , A. D. 18 — , I hereby notify you that I 

accept the office. 

Witness my hand this day of , A. D. 18 — . C. E. 

The failure of a town officer to take and subsciibe the oath or affirmation of Office 
within the time prescribed, vacates the office. State v. Matheney, 7 Kans. R., 327. But where the 

auestion of vacancy is brought in controversey, it is held that the simple fact of failure to take 
le oath ia not sufficient ; that it must appear that not taking the oath in time was by the fault 
or failure of the officer elect. Ross v. Williamson, 44 Ga. R., 501 ; State v. Falconer, 44 Ala. R., 696. 

(2) For form of collector's bond, and time of executing the same, see Div. " Revenue,* 
1 133, post 

Liability of collectors and sureties. Although the proceedings of a town are very Ir- 
regular and informal, at a meeting where assessor, treasurer and collector of taxes are elected, 
and taxes voted to be assessed, yet the collector is legally bound to pay over to the treesurer de 
facto all taxes voluntarily paid to him by the tax payer. Trescot v. Moan, 40 Maine R., 347. 

The neglect of the proper authorities to compel the collector to promptly account for moneys 
collected, will not have the effect to release the sureties on his bond. Readfleld v. Shaver, 50 
Maine R., 86. 

Where a person was collector of taxes for two successive years, and at the end of the second 
year proved to be a defaulter, he had a right to appropriate payments made by him to the town 
either year, at the time he made each payment ; if he failed so to appropriate them, the town 
mi^ht appropriate them as they desired ; and if no appropriation was made by either, the law 
would appropriate such payment to the oldest debts, although the whole deficit is thereby made 
to fall on the second year. When the sureties of such collector on his official bond are not the 
same for the second year as the first, in a suit on one of the bonds for an alleged default, it is for 
the defendant to show what part of the deficit belonged to each year. Readfleld v. Shaver, 50 
MaineR. 36. 

a collector's bond, dated August 15, 1854, and reciting that he was " chosen collector of taxes 
for the year ensuing," it appearing that he was chosen in 1854, his tax bills bearing date that 
year, and that he collected that year's taxes, will be deemed to have reference to the municipal 
year 1854. Trescott v. Moan, 40 Maine R., 347. 

The sureties on a tax collector's bond are bound although the collector never took the oath of 
office, if in fact he acted as collector. Lyndon v. Miller, 36 Vt. R., 329. 

Held, in California, that taxes collected by a tax collector can be recovered from him in a sin- 
gle action, in the name of the people, although a part of them are due to the State and a part to 
the county. People v. Lo\e, 25 Oal. R., 520. 

To maintain an action against a collector for money collected by him and not paid over at the 
time required, no previous demand of him is necessary. Wentworth v. Gove, 45 N. Hamp 
R^160. 

The section of the revenue law making a town collector's bond a lien against 
his real estate, (seepos*, Div. "Revenue," § 134,1 does not repeal the homestead exemption act, 
•o far as his bond is concerned. A judgment rendered against a town collector upon his official 



aM\ EX.] QUALIFICATION AND TENURE OF OFFICE. 

90. Supervisor, etc., refusing to serve.] § 7. If any person 
elected to the office of supervisor, town clerk, assessor or commis- 
sioner of highways, shall refuse to serve, he shall forfeit to the 
town the sum of $25.(1) [L. 1861, p. 228, § 13. 

91. Entering upon office before taking oath.] § 8. If any town 
officer who is required by law to take the oath of office shall enter 
upon the duties of his office before he shall have taken such oath, 
he shall forfeit to the town the sum of $50. [L. 1861, p. 228, § 15. 

92. Term of office.] § 9. Town officers, except as otherwise 
provided, shall hold their offices for one year, and until others are 
elected or appointed in their places and are qualified. [L. 1861, p. 
228, § 16. 

93. Successor to demand books, etc.] § 10. Whenever the 
term of any supervisor, town clerk or commissioner of highways 
shall expire, and other persons shall be elected or appointed to 
such office, it shall be the duty of such successor, immediately 
after he shall have entered upon the duties of the office, to demand 
of his predecessor all the books and papers under his control, be- 
longing to such office. [L. 1861, p. 228, § 17. 

94. Demand in case of vacancy.] § 11. Whenever either of 
the officers above named shall resign, or the office become vacant 
in any way, and another person shall be elected or appointed in 
his stead, the person so elected or appointed shall make such de- 
mand of his predecessor, or of any person having charge of such 
books and papers. [L. 1861, p. 229, § 18. 

95. Outgoing officer to deliver over.] § 12. It shall be the duty 
of every person so going out of office, whenever thereto required 
pursuant to the foregoing provisions, to deliver up, on oath, all the 

bond, Is like any other judgment, and creates no lien which can be enforced against his home- 
stead, except in the mode pointed out by statute. The homestead right is protected against all 
liens and sales, and against all modes of conveyance, whether by deed absolute or bj mortgage, 
unless released or disposed of in the mode pointed out in the homestead act. When the value 
of tbe homestead exceeds $1,000, on paying that to the owner, it may be sold under an execu- 
tion ; and in such a contingency a judgment, whether upon the official bond of a collector or 
otherwise, mav be enforced, but it does not create a lien against the homestead of the debtor. 
Hume etal.v. Oossett, 43 111., R., 297. 

Where a township collector received from the county clerk an official bond, with the proper 
amount named in it, for him to execute, held this was a sufficient notice of the amount or taxes 
to be collected by him, and it was his duty to have the bond executed and presented to the 
proper authority for approval within eight days thereafter, and his failure to do so was properly 
deemed a refusal to serve, and the town board was justified in refusing a bond afterwards pre- 
sented and in appointing another person to the office. Boss v. The People, 78 111. R, 375. 

(1) A person who has been chosen or appointed to a town office, and neglects or 
refuses to serve, whereby he incurs the penalty imposed by law, cannot be again chosen or ap- 
pointed to such office, or made liable to a second penalty for the second refusal to act. Hay- 
wood v. Wheeler, 11 Johns. R., 432. 

It Is held that an action for the penalty Imposed -will not lie except where the 
town proceed to a new election. That merely neglecting to file notice of the acceptance with 
the town clerk is not sufficient: the object of the Taw being to enforce the performance of th« 
duties, and if the town proceed to a new election, then to exact the penalty. Winnegar v. Roe, 
1 Co wen R., 258. 



88 TOWNSHIP OBGANIZATION ACT. [DIY. I. 

records, books and papers in his possession or in his control be- 
longing to the office held by him ; which oath may be administered 
by the officer to whom such delivery shall be made. It shall also 
be the duty of every supervisor and commissioner of highways, so 
going out of office, at the same time to pay over to such successor 
the balance of moneys remaining in his hands as ascertained by 
the auditors of town accounts.(l) [See Kev. Stat., Crim. Code, 
§216. L. 1861, p. 229, § 19. 

96. Demand of executor, etc.] §13. Upon the death of any 
of the officers enumerated, the successor of such officer shall make 
such demand as above provided of the executors or administra- 
tors of such deceased officer; and it shall be the duty of such exe- 
cutors or administrators to deliver up, on the like oath, all records, 
books and papers in their possession or under their control, be* 
longing to the office, held by their testator or intestate. [L. 1861, 
p. 229, § 20. 

AETICLE X. 

VACANCIES IN TOWN OFFICES AND THE MANNER OF FILLING THEM. 

8BCTION. 

97. Board of appointment. 

98. Vacancy in board of appointment. 

99. Notice of appointment. 
100. Resignations. 

97. Board of appointment.] § 1. Whenever any town shall 
fail to elect the proper number of town officers to which such town 
may be entitled by law, or when any person elected to any town 
office shall fail to qualify, or whenever any vacancy shall happen 
in any town, from death, resignation, removal from the town, or 
other cause, it shall be lawful for the justices of the peace of the 
town, together with the supervisor and town clerk, to fill the 
vacancy by appointment, by warrant under their hands and seals ; 
and the persons so appointed shall hold their respective offices 
during the unexpired term of the persons in whose stead they have 
been appointed, and until others are elected and appointed in their 
places, and shall have the same powers and be subject to the same 

(1) Form of Oath to be Administered to Town Officer on Going Out of 

Office. 

You do solemnly swear [or affirm] that you have delivered to A. B. 
[name of successor in office] all the records, books and papers in your pos- 
session or in your control, belonging to the office of supervisor for the town 
of , so help you God. 



ABT. £.] VACANCIES — HOW FILLED. 89 

duties and penalties as if they had been duly elected or appointed 
by the electors.(l) [L. 1861, p. 229, § 1. 

98. Vacancy in board of appointment.] § 2. Whenever a va- 
cancy shall occur, from any cause, in any or either of the offices 
enumerated in the foregoing section, as composing the board of 
appointment for the appointing of town officers in case of vacancy, 
it shall be lawful for the remaining officers of such appointing 
board to fill any vacancies thus occuring, except in , cases of va- 

(1) Form of Warrant of Appointment by Justices of the Peace, Supervisor and 
Town Clerk, to Fill Vacancy. 

To E. H., Esq., of the town of , in the county of , and State of 

Illinois, greeting: 

Whereas, at the annual meeting of said town, held on the day of 

April, A. D. 18 — , said town neglected to choose a [here insert the title of 
the office vacant,'] for the current year [or as the case may be], whereby 
said office has become vacant. 

Therefore, we, reposing full confidence in your integrity and ability, 
have appointed and do hereby appoint you a [here insert the title of the 
office], for said town, to hold said office until some other person shall be 
chosen or appointed in your stead, and you will have the same powers, 
and be subject to the same duties and penalties as if you had been duly 
chosen by the electors of said town. 

In witness whereof, we have hereunto subscribed our names and affixed 
our seals, at , this day of , A. D. 18—. 



J. P., Justice of the Peace. 
S. W., Justice of the Peace. 
J. C, Supervisor. 
W. G., Town Clerk. 



SEAL. 
SEAL. 
SEAL. 

SEAL. 



Where the law required the appointment of a collector of taxes to be in writing, but the 
appointment was made by parol, and a tax warrant issued to him upon such appointment, held; 
that although the appointment was irregular, the person thus appointed was an officer de facto, 
and his acts were valid as to the public and third persons. Hamlin v. Dvngman, 5 Lans. (N. Y.) 
R., 61. 

One appointed to an office by a person having no authority, and commissioned 
by a person having no authority, is an officer de facto. Mallett v. Uncle Sam, etc., 1 Nev. R., 188 ; 
Sawyer v. Hayden, 1 Nev. R-, 75. 

After the appointment of any person to a town office to nil a vacancy, the 

electors cannot hold a special town meeting and fill such vacancy by election; the person ap- 

? Dinted will hold over until the expiration of the time for which his predecessor was elected. 
eople v. Van Home, 18 Wend. R., 515. 

Before the board can appoint, a vacancy must in fact exist. The vacancy can 
not be created by the mere act of the board declaring that a vacancy exists. Opin. Att'y Gen'l 
Colville, (Minn.) May 2, 1867. 

Where the proper appointing power in a town meet and determine that there 
is a vacancy in the office of assessor, by a failure to elect one, and they appoint one who qualifies, 
his acts in making the assessmont as a de facto officer will be good and valid until he is ousted by 
proper proceedings for that purpose. People ex rel. v. Lieb, 85th 111. R., 484; Scott, J. dissenting. 

Where a town clerk declared publicly his Intention of removing from the 
town and county, and consulted with the justices of the peace as to the appointment of his suc- 
cessor, and actually thereafter left the town, and his successor was appointed. Held, that the lat- 
ter was entitled to the office. Matter of Bagley, 27 How. (N. Y.) Pr., 15L 

No authority exists to appoint a person to an office, such as town assessor, who Is not a resident 
Of the town. Opin. Att'y Gen'l Cole, (Minn.) Vol. 1, 214. 

Concerning vacancies in town offices, see Div. "Elections," 2? 124, 125. The provi- 
sions of these sections, it would seem, are intended to apply also to town officers, as wel) as others, 
except that the resignation of town officers is to be made to the justices of the peace of the town, 
as provided by this act Art. X., g 4, post 



§6 TOWNSHIP ORGANIZATION ACT. [DtV. L 

cancy in the office of justice of the peace or constable. (1) L. 1861, 
p. 229, § 2. 

99. Notice of appointment.] § 3. When any appointment shall 
be made, as provided in the two preceding sections, the officers 
making the same shall cause the warrant of appointment to be forth- 
with filed in the office of the town clerk, who shall immediately 
give notice to each person appointed.(2) [L. 1861, p, 230, § 3. 

(1) In regard to vacancy in the office < t justice ot the peace and constable the 
act concerning justices of the peace and constables (see Haines* Teeatisb— new edition, p. 72) 
enacts: 



Sec. 3. When a vacancy occurs in the office of a justice of the peace or constable by death 

nation, removal from the town or precinct, or other cause, if the unexpired term exceeds one 
year, his office shall be filled by special election, and it shall be the duty of the town clerk, in 
counties under township organization, and county clerks, in counties not under township organ- 
ization, in case of such vacancy, to issue his order to the judges of election of the proper town or 
precinct, requiring them on a certain day therein named, not less than twenty days from the 
Issuing of such order, to hold an election to fill such vacancy, and at the same time the county 
clerk snail deliver to such judges three copies of a notice of such election, two of which notices 
shall be posted up in such town or precinct in the most public places therein. And an election 
shall be held pursuant to such order, and conducted as other elections. If the unexpired term 
of his office does not exceed one year, the vacancy shall be filled by appointment by the county 
board. 

Form of Order of Special Election for Justice of the Peace or Constable. 
To the judges of election of the town of , in the county of , Ill- 
inois : 

You are hereby ordered and required to hold a special election in said 

town on the day of , A. D. 18 — , for the election of one justice of 

the peace [or constable, as the case may 6e], to fill a vacancy existing in 
that office in said town. Herewith are delivered to you three copies of a 
notice of such election, two of which should be posted up in said town, in 
the most public places therein. 

Given under my hand, this day of , A. D. 18 — . 

A. B., Town Clerk. 

Form of Notice for Special Election of Justice of the Peace or Constable. 

SPECIAL ELECTION. 

Notice is hereby given that a special election will be held in the town 

of , in the county of , and State of Illinois, at , on the 

day of , A. D. 18 — , for the purpose of electing one justice of the 

peace [or constable, as the case may be,] to fill a vacancy existing in that 
office in said town, which election will be opened at seven o'clock in the 
morning, and continue open until five o'clock in the afternoon of that 
day. 

Dated at , this day of , in the year of our Lord one thou- 

^ad eight hundred and . 

A. B., Town Clerk. 

[Where the township contains more than one precinct, the foregoing 
order and notice should be given to the inspectors of election in each pre- 
cinct and the form of the notice be varied so as to be in accord with the 
facts. ] 

(2) Notice to one apjiointed to fill vacancy. 

To H. R., Esq., of the township of. , in the county Of , and 

state of Illinois: 
You are hereby notified that on tbe day of... , A. D. , J. P., 



ART. &.) VACANCIES — HOW FILLED. §i 

100. Resignations.] § 4. The justices of the peace of a town 
may, for sufficient cause shown to them, accept the resignation of 
any town officer of their town, and whenever they shall accept any 
such resignation, they shall forthwith give such notice thereof to 
the town clerk of the town, who shall make a minute thereof upon 
the town records : Provided, that in towns having more than two 
justices of the peace, such resignation may be accepted by any two 
of them ; and in case of the resignation of a justice of the peace or 
constable, the town clerk shall immediately, upon receiving notice 
thereof, transmit a copy of such notice to the county clerk.(l) [L. 
1861, p. 230, § 4. 



S. W., J. C. and W. G., justices of the peace, supervisor and town clerk of 
said town, by their warrant of that date, under their hands and seals, ap- 
pointed you to the office of [here insert the title of office] for said town, 
which warrant has been duly filed in my office. 

Given under my hand, this day of , A. D. 18—. 

W. G„ Town Clerk. 

(1) Form of Resignation of Town Officer. 

To G. B. and G. F., Esqrs., justices of the peace of the town of , in 

the county of , and State of Illinois : 

By reason of [here state the cause of resignation] I hereby resign the 
office of commissioner of highways for said town [or as the case may be], 
and respectfully ask that you may accept my resignation. 

J. B. 
Dated at , this day of , A. D. 18—. 

We, the undersigned, justices of the peace of the said town of , 

being satisfied of the sufficiency of the cause shown above, do accept of the 
resignation of the said J. B. 

Witness our hands, this day of , 18- 



G F ' rJ us tices of the Peace. 



If the resignation of an officer be not accepted, he remains in office. Bouv Law 
Diet, title " Resignation." 4 Dev. N. C. R., 1, 

An office may be vacated by abandonment, or resigned by parol, and the ex- 
istence of a vacancy in either case, will depend upon all the facts and circumstances attending 
the same. State v. Allen. 21 Ind. R., 516. 

Any voluntary act of an officer, which permanently disables him to perform 
the duties of his office, such as enlistment in the military service of the United States, will 
amount to a constructive resignation of his office by abandonment Slate v. Alien, 21 Ind. R 
616; Bryan v. CatteU, 15 Iowa R. (7 With.), 538. 

One who has been elected to an office cannot resign It until he has been qualified, and has 
entered into possession of it Miller v. Board of Supervisors, 25 Cal. R., 93. 

A county superintendent of schools addressed and presented to the county court of his county 
a paper as follows : 

M The undersigned hereby tenders his resignation as county superintendent of schools." 

This paper was received by the court, and handed to their clerk to be placed on the files of the 
court, and was by him so filed. This was a virtual acceptance of the resignation, which was not 
subject to be revoked by the party presenting it. It was not necessary to enter an order upon 
the records accepting the resignation in form. Pace v. The People ex rel., etc., 50 111. R., 432. 

Although the resignation of a town officer is tendered to and accepted by the 

proper authority, he is not relieved from the duties and responsibilities of the office until his 
fuccessor is appointed or chosen and qualified. Badger v. United Slates, 93 U. 8. Rep., 599, (8 
OttoR.). 



02 Township omanization aot. [dit. l 

AETICLE XL 

THE SUPERVISOR AND HIS DUTIES. 

Section. 

101. Bond. 

102. Supervisor to receive and pay out moneys. 

103. Supervisor to prosecute for penalties. 

104. Supervisor's accounts. 

105. His annual settlement. 

106. Certificate of accounts. 

107. Supervisor to attend county board. 

108. To lay accounts before town auditors. 

109. Penalties. 

110. Assistant supervisors. 

111. Supervisors in Cook county. 

101. Bond.] § 1. The supervisor, before entering upon the 
duties of his office, shall give bond to the town, with one or more 
sureties, in at least double the amount of money which may come 
into his hands, conditioned for the faithful discharge of his 
duties as such supervisor, and that he will safely keep and 
pay over all money entrusted to his keeping, as such super- 
visor — such bond to be approved by the town clerk and tiled 
in his office with such approval endorsed thereon. When- 
ever the town clerk shall ascertain that such bond has been 
forfeited, he shall institute suit against such supervisor. If the 
clerk shall fail or refuse to institute such suit, any person inter- 
ested therein may institute the same.(l) [L. 1861, p. 230, § 1. 

(1) Form of Supervisor's Bond. 
Know all men by these presents, that we, J. G., A. D. and J. F., of the 

town of , in the county of ,and State of Illinois, are held and firmly 

bound unto the said town of , in the sum of [here insert double the 

amount that may come to his hands], for the payment of which well and 
truly to be made, we bind ourselves, our heirs, executors and adminis- 
trators, and each of them, jointly, severally and firmly, by these presents. 

Sealed with our seals, and dated this day of -, A. D. 18 — . 

The condition of the above obligation is such, that whereas, the above 

bounden J. G. has been chosen supervisor of the said town of for 

the current year, Now, therefore, if the said J. G. shall faithfully dis- 
charge his duties as such supervisor, and shall safely keep and pay over 
all money entrusted to his keeping as such supervisor, then the above 
obligation to be void and of no effect, otherwise to remain in full force 
and effect. 

J. G. [seal.] 
A. D. [seal.] 
J. F. [SEAL.] 

Form of Clerks* s Approval to be Indorsed on Supervisor's Bond. 

I approve the within [or above] bond, this day of , A. D. 18—. 

W. M., Town Clerk. 



AET. XI.] SUPERVISOR AND HIS DUTIES. 93 

102. Supervisor to receive and pay out money.] § 2. The 

supervisor of each town shall receive and pay out all moneys 
raised therein for defraying town charges, except those raised for 
the support of highways and bridges, and he shall, on or before 
the Tuesday next preceding the annual town meeting, prepare and 
file with the town clerk a full statement of the financial affairs of 
the town, showing first, the balance (if any) received by him from 
his predecessor in office, or from any other source ; second, the 
amount of tax levied the preceding year for the payment of town 
indebtedness and charges ; third, the amount collected and paid 
over to him as supervisor ; fourth, th© amount paid out by him, 
and on what account, including any amount paid out on town 
indebtedness, specifying the nature and amount of such indebted- 
ness, and the amount paid thereon, how much on principal and 
how much on interest account ; fifth, the amount and kind of all 

The law provides that all official bonds required by law to be given by any public 
officer or public employe, shall be acknowledged before some officer authorized by law to take 
acknowledgments of instruments under seal, which said acknowledgment shall be substantially 
in the following form : 

Form of Certificate of Acknowledgment of Official Bond. 

State of Illinois, \ aa 
County of i sa ' 

I, , hereby certify that , who are each personally known to 

me to be the same persons whose names are subscribed to the foregoing 
instrument, appeared before me this day in person and acknowledged 
that they signed, sealed and delivered said instrument as their free and 
voluntary act for the uses and purposes therein set forth. 

Given under my hand and seal, this day of , 18 — . 

Which acknowledgment shall be deemed and taken as prima facie evidence that the Instrument 
was signed, sealed and acknowledged in the manner therein set forth, and have the same force 
and effect as evidence in all legal proceedings, as that given to deeds of conveyance of real 
estate. Laws 1879, Brad well's Ed., p. 162, title " Official Bonds." 

Tlie town clerk being required to approve the bond of the supervisor, he would 
seem to be the proper person to ascertain and fix the amount to be Inserted in the bond. 

A recovery may be bad on a bond given for the benefit of the public, although 
jt has not been approved as required by law. People v. Johr, 22 Mich. R., 461. 

The supervisor of a town Is not, in the ordinary acceptation of the term, or, In other words, is 
not for all purposes, the agent of the town, and the town is not liable for his errors in judgment 
Davit v. Kalamazoo, 1 Mich. (N. P.) R.. 16. 

Where a supervisor is elected his own successor, and gives a new bond, the sureties 
are liable on such bond for any amount which appears to have been in the hands of such super- 
visor belonging to the town, at the end of the preceding official term, Morley v. Town of Mchir 
nora, 78 111. R., 394. 

The supervisor occupies the position of a qualified chief executive officer of his 
town, and when called upon as such officer to issue the bonds of the town, under an alleged elec- 
tion and subscription to a railroad company, he has a right to controvert the legality oi the de- 
mand and call for a judicial determination of the matter. The People v. Clint, 63 111. R., 394. 

Where, by the statute under which a proceeding is had by a town to raise money for a specific 

Eurpo8e by the issuing of its bonds, the supervisor of the town is directed to pay on such bonds, 
i payment of the interest thereon, the money received by him from the county treasurer for thai 
purpose; held, he cannot question the legality of the bonds, and has nodiscreUon in that respect 
Ross v. Curtis, 31 N. Y. R., 606. 

In such case he acts as the agent of the town ; and, as sucn agent, he cannot question the au- 
thority of his principal. Id. 

The supervisor of a town has no authority to compromise a claim against hla 
town on his own motion. The People v. Cline, 63 UL R., 394. 



94 TOWNSHIP ORGANIZATION ACT. [DIV. L 

outstanding indebtedness due and unpaid, and the amount and 
kind of indebtedness not yet due, and when the same will mature. 
It shall be the duty of the town clerk to record the same in the 
record book of the town as soon as filed, and post up a copy of 
the same at the place of holding the annual town meeting two 
days before the meeting is held ; and he shall also read aloud such 
statement to the electors at such meeting. Any supervisor or 
town clerk who shall willfully neglect to comply with the provis- 
ions of this section, shall forfeit and pay to the town the sum of 
not less than fifty nor more than two hundred dollars, to be sued 
for and recovered by said town in its corporate name, and appro- 
priated to repairs of highways and bridges therein.(l) [As 
amended L. 1875, p. 111. 

(1) The supervisor, as custodian of the funds of the town, must pay out the same 
according to law ; he is not required, nor permitted, to pay over money in obedience to an illegal 
vote of the town. Towns have no right to give away money collected of the inhabitants by tax- 
ation. Hooper v. Emery, 2 Shep. (Maine) R., 375. 

Township treasurers, under the school law, are held to be insurers of the funds coming to theii 
possession, and nothing can relieve them from their obligation to safely keep and pay over such 
funds, but the act of God or of the public enemy. Thompson et al. v. Board of Trustees, etc., 80 I1L 
R.. 99. And such is doubtless the rule in regard to supervisor, as the custodian of the town funds. 

A township trustee who, by law, was custodian of the town funds, made a contract for the 
township, whereby he became liable, in his official capacity, to pay a certain sum of money. 
He afterwards made payment in goods of his own, or by giving credit on account due him per- 
sonally by the other party, and with his consent, who thereupon released the township. Held, 
that the fact that the trustee retained a corresponding amount of the township funds applicable 
to that purpose, did not constitute a conversion of the funds of the township to his private use, 
or render him liable therefor in a suit on his official bond. State v. Parker, 33 Ind. R., 285. 

The supervisor Is authorized to pay out money only on the certificate of the 

town clerk, countersigned by himself. See post, Art. 13, § 10, Amendment to the Township Act 
The person to whom such certificate is issued should endorse his name thereon which may be 
considered as his receipt for payment of the amount, 

Form of Supervisor'* Statement of Financial Affair* of ths Town. 

State of Illinois, 1 

County, Vss. 

Town of J 

The following is a full statement of the financial affairs of the said town 

of , prepared by A. B., supervisor of said town, for the year ending 

the day of , 18— : 

1st. Amount of balance received from predecessor in office, on 

hand at close of last preceding year « $100.00 

Amount received from other sources as follows : 

Amount received from fines due the town : 50.00 

2d. The amount of tax levied the preceding year for payment of 

town indebtedness and charges, is 800.00 

Jd. The amount collected and paid over to the present supervisor 

by the town collector, is 100.00 

The amount collected and paid over to the present supervisor 

by the county collector, is 100.00 

Total amount .. $650.00 

Deduct amount of tax levied preceding year as aforesaid... 300.00 

Leaving total amount received « $350.00 



ABT. XI.] SUPERVISOR AND HIS DUTIES. 95 

103. Supervisor to prosecute for penalties.] § 3. He shall 
prosecute in the name of his town or otherwise, as may be neces- 
sary, for all penalties or forfeitures given by law to such town, or 
for its use, and for which no other officer is specially directed to 
prosecute, except as may be otherwise directed by the town meet- 
ing^) [L. 1861, p. 230, § 2. 

104. Supervisor's account] § 4 He shall keep a just and 
true account of the receipts and expenditures of all moneys which 
shall come into his hands by virtue of his office, in a book to be 
provided for that purpose at the expense of the town ; and said 



4th. The amount paid out by present supervisor, and the account 
on which the same was paid, including amount paid on 
town indebtedness, the nature thereof, amount of such in- 
debtedness, and amount paid, showing how much on prin- 
cipal and how much on interest account, is as follows : 

Amount paid out on account of fees and compensation of 

town officers $100.00 

Amount paid on account of bonded debt for bond No. 1„ 100.00 

Amount paid on account of interest on bonded debt 20.00 

Total amount paid out $220.00 

Balance in hands of supervisor $130.00 

Total $350.00 

5th. The amount and kind of all outstanding indebtedness of the 
town, due and unpaid, is as follows: 

Amount due on amount audited for building town house... ..$1000.00 
Amount due on compensation of town officers 25.00 

Total indebtedness due and unpaid $1025.00 

To amount and kind of indebtedness not yet due, and time 
the same will mature is as follows : 

Bond No. 2, for bridge purposes, due April 1, 1880.. $100.00 

Bond No. 3, for bridge purposes, due April 1, 1881 - - 100.00 

Total indebtedness not yet due $200.00 

Dated , this day of , A. D. 18—. 

A. B., Supervisor. 

(1) A supervisor of a town, In discharging his duties as such, acta not In his 
natural, but his official capacity ; and is pro tanto a corporation. He has capacity of suing and 
being sued so far as his trust is concerned. The right to sue is incident to his office, and passes 
to his successor. If, in a suit brought by or against a supervisor as such, he fails in his action, 
execution goes against him personally, and his remedy is against the town. So held in New 
York. Janson y. Ostrander, 1 Cowen R., 670. 

Special authority- front the electors of a town is not necessary to enable the 
inpervisor to defend a suit against the town, or to take an appeal therein. Homer t. Tovm oj 
Polk, 6 Wis. IL, 35«. 



TOWNSHIP OBGANTZATION ACT. 



[DIV. L 



book shall be delivered to his successor in office. (1) [L. 1861, p. 
230, § 3. 

105. His annual settlement.] § 5. On Tuesday preceding the 
annual town meeting, he shall account to the board of auditors 
for all moneys received and disbursed by him in his official capac- 
ity. [L. 1861, p. 230, § 4. 

106. Certificate of his account] § 6. At every such account- 
ing the justices and town clerk, or a majority of them, shall enter 
a certificate in the supervisor's official book of accounts, show- 
ing the state of his accounts at the date of the certificate.^) [L. 
1861, p. 230, § 5. 

107. Supervisor to attend county board.] § 7. The supervisor 
of each town, except the supervisors of towns in Cook county, 
shall attend all meetings of the county board of the county.(3) 
[L. 1861, p. 231, § 6. 

108. To lay accounts before town auditors.] § 8. He shall re- 
ceive all accounts which may be presented to him against the 
town, and shall lay them before the board of town auditors at or 
before their next meeting. [L. 1861, p. 231, § 7. 



(1) Form of Keeping Supervisor's Book. 

M. L., supervisor of the town of , in account with said town : 

Db. Cb. 



DATE. 




$ 


CIS. 


DATE. 


No.ofCer. 




t 


CT8. 


18- 
Feb. 1 


To am't rec'd of col- 
lector of the town. 


150 


50 


18— 
Jan'y 1 

April 1 


100 
101 


By am't paid for super- 
visors' book 

By amount paid on ac- 
count of 


5 
5 


00 

00 



(2) Form of Certificate of Justices of the Peace and Town Clerk, to bt 
Entered in Supervisor's Book Upon Examination of His Accounts. 

County, \ 

Town of J 88, 

We, the undersigned, the justices of the peace and town clerk of the 

said town of , do hereby certify that we have this day examined the 

foregoing account [the certificate being entered at the close of the account 
at every such accounting] of M. L., supervisor of said town, and that we 
find the same in all respects correct and true, and that there appears at 

this date to be a balance of dollars and cents in the hands of 

said supervisor. 

Witness our hands, this day of March, A. D. 18 — . 

H " L * } Justices of the Peao* 
F.B.,Town Clerk. 

(3) In regard to Cook county, the Constitution, Art X., Sec. 7, provides as follows: 
" The county affairs of Cook county shall be managed by a board of commissioner of fifteen 
persons, ten of whom shall be elected from the city of Chicago, and five from the towns outside 
of said city, in such manner as may be provided by law." 



ART. XII.] TOWN CLERK KKD HIS DUTIES. 97 

109. Penalty.] § 9. If any supervisor shall refuse, or shall 
willfully neglect to perform any of the duties of his office con- 
tained in the preceding sections of this article, he shall forfeit to 
the town the sum of $50, and be disqualified to act as the super- 
visor of said town. [L. 1861, p. 231, § 9. 

110. Assistant supervisors.] § 10. Assistant supervisors shall 
have no power or duties as town officers, but shall be members of 
the county board of their respective counties, and shall have and 
enjoy the same powers and rights as other members. [L. 1861, 
p. 231, § 10. 

111. Supervisors in Cook county.] § 11. The supervisors of 
towns in Cook county shall perform the same duties as supervisors 
of towns in other counties under township organization, except 
that they shall not be members of the county board, or exercise 
any of the powers thereof. They shall have the same compensa- 
tion for their services as is or may be prescribed by law for simi- 
lar services rendered by other supervisors of towns, 

AETICLE XII 

THE TOWN CLERK AND HIS DUTIES. 

tecnoH. 

112. Records, etc. — Oaths. 

113. Records of town meeting. 

114. Certificates of votes to raise money. 

115. Certificate of tax required. 

116. Failure to return certificate, 

117. Copies — Evidence, 

112. Records, etc— Oaths.] § 1. The town clerk shall have 
the custody of all records, books and papers of the town, and he 
shall duly file all certificates or oaths and other papers required 
by law to be filed in his office. He is authorized to administer 
oaths and take affidavits in all cases required by law to be admin- 
istered or taken by town officers. (1) [L. 1861, p. 231, § 1 ; L, lfc>67, 
p. 173, § 2 ; L. 1869, p. 407, § 1. 

(1) When the town clerk files a paper In his office he should make an entry thereof 

upon it, with the date of filing, in the following form : 

Form of Entry of Filing Paper by Town Clerk. 
Filed this day of , A. D. 18—. J. J., Town Clerk. 

Where a Town clerk is required hy law to perform a mere ministerial act, as the 
countersigning of bonds issued on a subscription to the stock of a railroad company, It la not his 

Erovince, when called upon to do the act, to determine whether the proper steps have been 
Lken to authorize the issuance of the bonds. The law provides another mode in which that 
qupvtion could be properly determined (citing Tte People v. Dean, 3 Wend., 438). Houston v. '1 fee 
People exrel., etc., 55 111. R., 398. This ca«>e is not in harmony, however, with the ruMngin tha 
cane of The People ex rel. stiiie v. The Board of Supervuforx of Vermilion Co., 47 11L R., 206. 



98 TOWNSHIP OKGANIZATION ACT. [DIY. L 

113. Records of town meetings.] § 2. He shall record in the 
book of records of his town the minutes of the proceedings of 
ever j town meeting held therein, and shall enter in said book 
every order or direction, and all by-laws, rules and regulations 
made by any town meeting. (1) [L. 1861, p. 231, § 2. 

114. Certificates of votes to raise money.] § 3. He shall 
deliver to the supervisor, before the annual meeting of the 
county board of the county, in each year, certified copies of all 
entries of votes for raising money, made since the last annual 
meeting of the county board.(2) [L. 1861, p. 231, § 3. 

115. Certificate of tax required.] § 4. He shall, annually, at 
the time required by law, certify to the county clerk the amount 
of taxes required to be raised for all town purposes. (3) 

116. Failure to return.] § 5. If any town clerk shall willfully 
omit to make such return, he shall be fined, for each offense, not 
exceeding $10. 

117. Copies — Evidence.] § 6. Copies of all papers, duly filed 
in the office of the town clerk, and transcripts from the town 
records certified by him, shall be evidence in all courts with like 
effect as if the originals were produced.(4) L. 1861, p. 231, § 6. 

(1) It is competent for one chosen town cleric to make a record of his own 

election and qualification. Briggs v. Murdoch, 13 Pick. R., 305. 

The by-laws or ordinances of a town, printed and pasted Into the regular 
record book for containing the same, are admissible in evidence, as being duly recorded. Eu- 
baiiks v. Town qf Ashley, 36 111. R., 177. 

(2) Form of Certificate of Town Clerk to Accompany Book of Entry qf 
Votes for Raising Money, Recorded in Town Book. 

County, \ 

Town of J ss * 

I do hereby certify that the foregoing are true copies of entries of vote* 

of the electors of the town of , at town meeting, for raising money 

made since the last annual meeting of the county board, and recorded in 
the town record of said town. 

Witness my hand this day of , A. D. 18 — . 

W. L., Town Clerk. 
(3) See post, DIv. " Revenue," 2 122. 

(4) Form of Certificate of Town Clerk to Copies of Papers and Records. 



County, 



Town of 



I, J. M., town clerk of said town of , do hereby certify that the 

foregoing [or within] is a true and correct copy of the original thereof on 
file in my office [or is a true and correct transcript from the original book 
of records of said town, wherein is contained the entry of records of all 
such matters.] 

In witness whereof I have hereunto set my hand and seal this — — day 

of , A. D. 18— . 

J. M., Town Clerk, [seal*] 

Be« Rev. Stat, " Evidence and Depositions," ch. 51, 1 14, 16 



AST. XIII. BOARD OF TOWN AUDITORS. 



In addition to the duties of the town clerk prescribed in the preceding and 
following sections, the act of July 1, 1891, providing for the payment of a 
bounty for destroying English sparrows [see Appendix], devolves on him the 
duty of issuing bounty certificates to claimants. He must be "satisfied of the 
correctness of the claim," for which purpose he may require a sworn state- 
ment or affidavit of the claimant; but the exaction of any fee for this service 
is not authorized. 



AKTICLE XIII. 

THE BOARD OP TOWN AUDITORS. 



118. Who constitute.] § 1. In each town the supervisor, town 
clerk and justices of the peace of the town shall constitute a 
board of auditors ; said board shall consist of no less than three 
persons, and each person shall cast but one vote.(l) [L, 1861, p. 
232, § 1. 

119. Absences Supplied.] § 2. In case of the absence of any 
or either of the said officers, or their failure to attend any meet- 
ing of the board, those attending may associate with them the 
collector or assessor of the town, or both, in the place of any 
absentee or absentees, as the case may be, who shall act for the 
time being as members of such board.(2) [L. 1861, p. 232, § 2. 

120. Semi-annual meeting.] § 3. Said board of auditors shall 
meet at the town clerk's office for the purpose of examining and 
auditing the town accounts, semi-annually, on the Tuesday next 
preceding the annual meeting of the county board, and on the 
Tuesday next preceding the annual town meeting. [L. 1861, p. 
232, § 3. 

121. Auditing accounts.] § 4. The board of auditors shall, at 

(1) Each Justice of the peace of the township is a member of the board of town audit- 
ors. The number of justices who shall be town auditors of a town is not limited: but the, 
law includes them all, whatever may be the number allowed in the township. Opinion AWj 
Oen'i Edsall, Aug. 13, 1873. This is not intended to include police magistrates. 

When all the officer* forming the board of town auditor* have met, a majority 
of them may decide upon questions coming before them, and their certificate will be valid, al- 
though the supervisor has refused to sign it. Onderdonk v. Supervisor, l Hill R., 195. 

The anpervisor, town clerk or justice of the peace, although his resignation is ten- 
dered to and accepted by the proper authority, continues in office, and is not relieved from his 
duties and responsibilities as a member of the board of auditors, under the township organiza- 
tion laws of the State of Illinois until his successor is appointed or chosen and qualified. Bad- 
ger v. United States, 93 U. S., (3 Otto R.), 599. 

Under the act concerning Canada thistles, town auditors have authority to appoint 
commissioners of Canada thistles. See post, " Canada Thistles." 

(2) It Trill be observed that any three of the officers named In the first section of thla 
article may comprise the board of town auditors; il three of these are present, there would 
♦.eem to be no necessity for associating the collector or assessor In order to constitute a compe- 
tent board. 



100 TOWNSHIP OEGANIZATION ACT. [DIV. L 

the same time and place as stated in section 3, examine the ac- 
counts of the supervisor, overseer of the poor, (where the town 
sustains its poor,) and the commissioners of highways of such 
town, for all moneys received and disbursed by them, and shall 
also examine and audit all charges and claims against their town, 
and the compensation of all town officers, except the compensa- 
tion of supervisors for county services.(l) [L. 1861, p. 232, § 1, 5. 

122. Accounts filed with town clerk, etc.] § 5. The accounts 
so audited, and those rejected, if any, shall be delivered, with the 
certificate of the auditors, or a majority of them, to the town 
clerk, to be by him kept on file for the inspection of any of the in- 
habitants of the town. They shall also be produced by the town 
clerk at the next annual meeting, and shall be there read by him. 
[L. 1861, p. 232, § 4. 

123. Accounts verified.] § 6. The board of auditors may re- 
quire any account presented to be verified by affidavit, setting 
forth that the same is correct and just, and is unpaid, or, if any 
part thereof has been paid, setting forth how much.(2) [L. 1861, 
p. 232, § 6. 

(1) The auditors of town accounts may be compelled by mandamus to audit the 
amount allowed for damages by taking land for a highway, although the party may have a 
remedy by action against the town. Van Vleit ex rel., etc. v. Wilson et al., 17 Wis. R„ 687. And 
compelled by mandamus to perform any ministerial duty which the law imposes they may be 
upon them. Carpenter, ex rel, etc, v. Supervisor of Tovm of Beloit, 20 Wis. R., 79. 

It is held (Supervisors v. Ottawa, 12 111. E., 480), that the board of supervisors in such counties 
as have adopted township organization are required to provide for the support of the paupers of 
the county, and that there is no foundation for a distinction between county and town paupers. 
The section of this act, therefore, providing for the account of overseer of the poor, will not 
apply except in those counties where the town support their own poor. 

A Judgment against a town is a town charge, and the board of auditors have no dis- 
cretion or power to refuse to audit a valid judgment against a town. Boards of town auditors 
have no power to pass in review upon a judgment recovered against a town upon the solemn 
adjudication of a court. A town cannot in a collateral proceeding go behind the judgment of a 
court, to question the sufficiency of the cause of the action upon which it was predicated. Town 
if Lyons v. Cooledge, Sup. Ct, 111. Jan'y, 1879. 

(2) Form of Bill Against Town and Affidavit of Correctness. 

Town of . 

To A. J. Dr. 
18—. March 20. To services as supervisor, one day out of town 
in attending to prosecution of suit in favor of said town against C. 
D., pending in the county circuit court, $2.50 

■A.. J . 

State of Illinois ) 

County, j 8S ' 

A. J., being duly sworn, doth depose and say that the foregoing [or an- 
nexed] bill for two dollars and fifty cents by him rendered against the 

town of , in said county for services rendered as therein stated, is 

correct and just and is unpaid. A. J. 

Subscribed and sworn to before me, this) 

day of , A. D. 18—. \ 

J. D., Justice of the Peace. J 

Where any part of a bill has previously been allowed and paid, credit therefor should be gives 
on the bill, and the fact stated in the affidavit 



4BT. XTTT.] BOARD OF TOWN AUDITORS. 101 

124. Certificate of audit— Tax.] § 7. The board shall make a 
certificate, to be signed by a majority of said board, specifying 
the nature of the claim or demand, and to whom the amount is 
allowed, and shall cause such certificate to be delivered to the 
town clerk of said town, to be by him kept on file for the inspec- 
tion of any of the inhabitants of said town ; and the aggregate 
amount thereof shall be certified to the county clerk at the same 
time and in the same manner as other amounts required to be 
raised for town purposes, which shall be levied and collected as 
other town taxes, except that in towns mentioned in section four 
(4), article 4, of this act, the amount shall be certified to the 
county board, who shall include the same in their estimate of the 
town expenses.(l) [L. 1861, p. 232, § 7. 

125. Town charges.] § 8. The following shall be deemed 
town charges : 

1. The compensation of town officers for services rendered 
their respective towns. 

{I) Form of Certificate of Auditors Allowing Claims Against a Town, with 
Nature of Demand, and to Whom the Amount is Allowed. 

State of Illinois, 1 

County, \ ss. board of town auditors. 

Town of . J 

We, the undersigned, comprising the board of town auditors of said 

town of , having duly met at the town clerk's office, on the day 

of , 18—, for the purpose of auditing town accounts, do hereby cer- 
tify that the following claims or demands against said town were pre- 
sented, and being examined, were allowed at said meeting, to-wit: 



TO WHOM ALLOWED. 


NATURE OF CLAIM. 


AMOUNT. 


Joseph Jenkins, 
John Jackson, 
James Jones. 


Compensation as supervisor, 
Compensation as town clerk, 
Goods for pauper, 


25 00 
25 00 
10 00 



In witness whereof the members of said board of town auditors have 
hereunto set their hands, this day of , 18 — . 

(Signed by members, with titles of their office.) 

["There is nothing in the language of this section (§7) which can be con- 
strued as authorizing the board of auditors to levy township taxes. No such 
power is given to the board, directly or indirectly. Moreover, section 3 of arti- 
cle 4 clearly confers this power on the electors present in the town meeting." 
(P. D. &E. ry. co. v. People, 141X11. 483; also, St.L. R. I. &C. ry. co. v. People, 147 
111. 9.) Sec. 2 of article 12 makes it the duty of the clerk to keep a record of all 
proceedings, and of all votes for raising money, and subsequent sections provide 
for his certification to the county clerk of the amount levied. "Back of the 
clerk's certificate must be, of course, a levy of the tax by the prorer township 
authority" — i. e., the town meeting. (141 111., supra.) In orderly procedure, 
the town meeting should pass an appropriation bill, which should contain a 
clause directing the town clerk to certify the amount to the county clerk, 
together with the amount of allowed claims certified by the board of auditors.] 



102 TOWNSHIP ORGANIZATION ACT. [DIT. L 

2. Contingent expenses necessarily incurred for the use and 
benefit of the town. 

3. The moneys authorized to be raised by the vote of a town 
meeting, for any town purposes.(l) 

4. Every sum directed by law to be raised for any town pur- 
pose. [L. 1861, p. 233, § 8. 

126. How taxes raised.] § 9. The moneys necessary to defray 
the town charges of each town shall be levied on the taxable 
property in such town in the manner prescribed in the act for 
raising revenue and other moneys for state and county purposes 
and expenses.(2) L. 1861, p. 233, § 9. 

126a. Duty of town clerk — Record.] § 10. The town clerk 
shall act as clerk of the board of town auditors, and shall record 
the proceedings of each meeting of the board in a book which 
he shall provide for that purpose at the expense of the town. Such 
record snail include all certificates of accounts audited by the 
board. Accounts so audited shall be paid by the supervisor on 
presentation of a certificate of the town clerk, stating the amount 
and to whom allowed, the date when audited and on what ac- 
count ; which certificate, before payment of the amount, shall be 
countersigned by the supervisor." (3) [Act approved May 29, 
1879. 

Form of Town Clerk's Certificate to County Clerk of Aggregate Amount 
of Town Accounts Audited, 

County, \ 

Town of ,/ ss * 

To the county clerk of said county : 

I, A. B., town clerk of said town of , do hereby certify that the 

aggregate amount of accounts audited against said town by the board of 
town auditors thereof, at their meeting held at the town clerk's office on 

the day of , 18 — , is dollars and cents, as appears 

by the certificate of said board duly delivered to me and remaining on 
file in my office. 

In witness whereof I have hereunto set my hand this day of 1 

18—. 

A. B., Town Clerk. 

(1) Tlie expense of building a town house for holding town meetings, and for other 
town purposes, is a town charge. Town of Beaver Dam v. Frings, 17 Wis. R. 379; Kempton v. 
Stetson, 13 Mass. R., 271. 

(2) See Div. " Revenue," gg 121-127, post. 

(3) The certificate provided in the above section is in the nature of negotiable pa- 
per when countersigned by the supervisor, if issued for an amount properly audited ; it will be 
good in the hands of the payee or the holder thereof when endorsed by the payee, for th<* 
imount therein expressed. Emery v. Mariaville, 56 Maine R., 315. But the town would not be 
liable thereon until after demand and refusal of payment Packard v. Bovina, 24 Wis. R., 882. 

Town orders are not commercial paper in the hands of bona fide indorsers for value, 
to as to exclude evidence as to the legality of their inception, and they are subject to any legal 
defense ; such as want of authority in the drawers or acceptors, whose agency is a fact to be 
proved. Sturtevant v. Liberty, 46 Maine R., 457. 

The following may be the form of the town clerk's certificate of an amount audited : 



1BT. XIV.] BOARD OF HEALTH. 103 



AETICLE XIV. 

BOARD OF HEALTH. 

Section. 

127. Members— Powers. 

128. Record — Report. 

129. Compensation. 

127. Who constitute — Powers.] § 1. The supervisors, asses- 
sor and town clerk of every town shall constitute a board of health, 
and on the breaking out of any contagious disease in their town or 
immediate vicinity, they shall have power to make and enforce any 
rules and regulations tending to check the spreading of such dis- 
ease within the limits of such town, as they may think proper : 
and for this purpose they shall have power to shut up any house 
or place where any infected persons may be, and cause notices 
of warning to be put thereon, or remove such person to any pest 
house within the limits of said town, at the expense of the party so 
moved, if he be of sufficient ability to pay, or otherwise at the ex- 
pense of said town : Provided, that nothing in this section shall 
apply to any town, or any part thereof, lying within the corporate 
limits of any incorporated city or village.(l) [L. 1865, p. 75, § 1. 

128. Record— Report] § 2. The town clerk shall keep a full 
record of all the doings of said board, and report the same to the 
annual meeting of such town.(2) [L. 1865, p. 76, § 2. 

Form of Town Clerk's Certificate of Claim Audited. 

% . * No. . 

State of Illinois, ^ 

County, \ sa. town clerk's office, , 18 — 

Town of , J 

This is to certify, that the sum of dollars and cents will be 

paid by the supervisor of said town, to or order, on presentation of 

this certificate ; which amount was allowed to him and audited on the 

day of -, 18—, by the town auditors of said town, on account of . 

Countersigned, 

C. D., Supervisor. A. B., Town Clerk. 

(1) A board of health has no power to take and occupy premises as a pest house -with- 
out the owner's consent. Boom v. City of Utica, 2 Barb. R., 104. 

Where the Inhabitants of a town are exposed to small pox, held, in Vermont, 
that the authorities of the town, acting as a board oi health, may take measures for its preven- 
tion by inoculation, and the town may legally vote a tax to defray the expense. Hazen v. Strong. 
2 Vt. R., 427. 

Powers conferred on a board of health should receive a liberal construction, for ths 
advancement of the ends for which they are bestowed. Gregory v. New York, 40 N. Y. R., 273. 

(2) The rules, regulations and all doings of the board of health should be re- 
duced to writing. It is held in New York that parol evidence of the orders of the board of health 
Is inadmissible. Their determinations are judicial, and must be in writing. Meeker v. Van BUvum 
laer, 15 Wend. R., 897. 



104 TOWNSHIP ORGANIZATION ACT. [DIV. L 

129. Compensation.] § 3. The members of said board shall be 
allowed for their time spent in the performance of their said duties 
each the sum of $1.50 per day, which, together with all bills by 
them contracted, and all sums of money by them expended, shall 
be audited by the board of auditors of such town, and be paid in 
the same manner as other town expenses. [L. 1865, p. 76, § 2. 

AETICLE XV. 

THE COMPENSATION OF TOWN OFFICEBS. 

tecnow. 

130. Fees. 

1. Of town clerk and supervisor. 

2. Of poundniaster. 

3. Of members of board of appointment. 

4. No fees allowed for administering oath of office. 

131. Emergency. 

130. Fees.] § 1. The following town officers shall be entitled 
to compensation at the following rates for each day necessarily 
devoted by them to the service of the town in the duties of their 
respective ofnces.(l) 

(1) The fees and compensation of the town cleric, supervisor, overseer of th« 
poor, pound master, board of appointment and town collector, is also fixed by Chapter 68 of the 
Revised Statutes, entitled, "Fees and Salaries," § 36 which provides as follows: 

FEES AND COMPENSATION OF TOWN OFFICERS. 

6 36. The following named town officers shall be entitled to compensation at 
the following rates, for each day necessarily devoted by them to the services of the town, in the 
duties of their respective offices : 

The town cl«rlt, supervisor and overseer of the poor, shall receive for theii 
services two dollars per day, when attending to town business out of town ; one dollar for town 
business in their town : Provided, that the town clerk shall receive fees for the following, and 
not a per diem : 

For serving notices of election upon town officers, as required by law, twenty-five cents each; 
ft>r filing any paper, required by law to be filed in his office, five cents each ; for posting up 
notices, required by law, twenty-five cents each ; for recording any order or instrument of writ- 
ing, authorized by law, six cents for each one hundred words ; for copying any record in his 
office, and certifying to the same, six cents for every one hundred words, to be paid by the per- 
son applying for the same; for copying by-laws for posting or publication, six cents for each one 
hundred words, to be paid for by the town. The town assessor shall receive for his services as 
assessor, two dollars and fifty cents per day: Provided, that in towns of fifty thousand inhabi- 
tants and upwards, in counties of the third class, the assessor shall receive five dollars per day. 
[See "Revenue," §93. 

The pound master shall be allowed the following fees for his services, to-wit: 

For taking into the pound and discharging therefrom every horse, ass, or mule, and all neat 
cattle, ten cents each; for every sheep or lamb, three cents each; and for every hog, large or 
small, five cents each. 

The officers composing the board of appointment in case of vacancy, when they shall meet for 
that purpose, and the officers composing the board of town auditors, shall be each entitled to 
one dollar a day for their services. 

No justice of the peace or town officer shall be entitled to any fee or compensation, from any 
individual elected or chosen to a town office, for administering to him the oath of office. 

Each town or district collector shall be allowed a commission of two per cent, on all moneys 
collected by him, to be paid out of the respective funds collected : Provided, that in any case 
where the compensation so allowed shall be insufficient, the town or county board may allow an 
additional compensation or per diem in lieu of other or greater commissions, in which case sai<? 
additional compensation shall be paid out of the town or county treasury, as the case may re 
quire : And, provided further, that all excess of commissions and fees over fifteen hundred do' 
kus shall be paid into the town or district treasury. 



A.RT. XV.] COMPENSATION OF TOWN OFFICERS. 105 

1. The town clerk and supervisor shall receive for their servi- 
ces two arid a half dollars per day when attending to town busi- 
ness out of town ; one dollar and fifty cents for town business in 
their town :(1) Provided, that the town clerk shall receive fees, and 
not a per diem, for the following services : 

For serving notices of election upon town officers, as required 
by la\ , tAventy-five cents each. 

For filing any paper required by law to be filed in his office, ten 
cents each. (2) 

For posting up notices required by law, twenty -five cents each. 

For recording any order or instrument of writing authorized by 
law, eight cents for each one hundred words. 

For copying any record in his office and certifying to the same, 
eight cents for every one hundred words, to be paid by the person 
applying for the same. 

For copying by-laws for posting or publication, eight cents for 
each one hundred words, to be paid by the town.(3) 

The town assessor shall receive for his services as assessor 
two an a half dollars per day. (4) 

2. The pound master shall be allowed the following fees for his 
services, to-wit: 

For taking into the pound and discharging therefrom horses, 
asses, mules and neat cattle, ten cents each ; sheep or lambs, three 
cents each ; and swine, large or small, five cents each. 

He may also be allowed to receive his reasonable charges for 



The compensation of commissioners of highways is provided for by the road law. 
See post, Div. "Roads and Bridges," - 2 66. 

Public officers take their offices with their burdens, as well as advantages, and 
eervices required of them by law, for which no pay is specially provided, must be considered as 
compensated by the fees allowed tor other services. Miami v. 'Blake, 21 lnd-. R., 32. 

But when the law requires the services of an individual in a special capacity, 
as secretary of a board of commissioners, or clerk of a town meeting, but makes no provision for 
his compensation, he is entitled to reasonable compensation. Territory v. Narris, 1 Oregon R., 107. 

And this would apply to a moderater of a town meeting, who, in the absence of 
any express provision to pay, would be entitled to reasonable compensation, and this may be 
regulated by that allowed to other town officers for similar services, as that of town clerk for 
-ervices as clerk of a town meeting. 

(1) The fees of a supervisor for doing business outside of and In the town, for the 
town, is a town charge, with which the county has nothing to do. But the supervisor is entitled 
to 82.50 per day, and 5 cents mileage each way for attending the board of supervisors, and this is 
to be paid out of the county treasury. Opinion Att'y Gen'l Rdsall, March 31st, 1873. 

(2) A town clerk is not required by the revenue law to file tax lists, and therefore 

can recover no recompense for filing them. Cliarleston v. McOrory, 36 111. R., 456. 

(3) A clerk is not obliged to deliver a copy of a record in his office until his fees for 
making the same are paid. The People ex ret. v. Rockwell, 2 Scam. R., 3. 

Clerks have a right to insist on the payment of their fees where the service Is 
rendered for individuals, at the time the service Is performed. The People v. Harlow, 29 111. R., 43. 

(4) The pay of assessor is also provided by the revenue act. See post, " Revenue," g 93. 



106 TOWNSHIP ORGANIZATION ACT. [DIV. I, 



the keeping of such, animals. The amount which he shall charge 
therefor may be regulated by the town meeting. 

3. The officers composing the Board of Appointment in case of 
vacancy, when they shall meet for that purpose, and the officers 
composing the Board of Town Auditors, shall each be entitled to 
one dollar and fifty cents a day for their services. 

4. No justice of the peace or town officer shall be entitled to 
any fee or compensation from any individual elected or appointed 
to a town office, for administering to him the oath of office. (See 
Eev. Stat.,- "Fees and Salaries, ' ch. 53, § 36. L. 1861, p. 238, § 
1, 2, 3, 4, 5. 

131. Emergency.] § 2. Whereas the constitution requires that 
the day of holding the annual township meeting shall be uniform 
throughout the state ; and whereas, in the county of Cook, the day 
of election, as fixed by law, is not the same as that in the majority 
of the counties in this state, and there is doubt whether any elec- 
tion can legally be held in such county for town officers, an emer- 
gency exists that this act shall take immediate effect : therefore, 
this act shall take effect and be in force from and after its passage. 

CITIES OKGANIZED AS TOWNS IN CEKTAIN CASES. 



AN ACT to authorize County Boards In Counties under Township Organization to organize cer- 

ein as a Town. [A] 
force July 1, 1877.J 



tain territory situated therein as a Town. [Approved May 23, 1877. In 

"377.1 



SECTION. 

1. Territory in city organized as town. 

2. Town in city. 

3. Election of officers. 

4. Powers exercised by council. 

5. What city council may provide. 

6. May regulate the number of justices. 

7. Vacancies. 

1. Territory of city organized as town.] § 1. That the county 
board, in any county under township organization, may provide 
that the territory embraced within any city in such county shall 
be organized as a town : Provided, such territory shall have a 
population of not less than three thousand. And, provided, the 
city council in such city shall by resolution request such action by 
the county board. 

2. Town in city.] § 2. The territory of any city now organ- 
ized, within the limits of any county under township organization, 
and not situated within any town, shall be deemed to be a town. 

3. Election of officers.] § 3. All town officers within any town 
organized as aforesaid shall be elected at the annual charter elec- 



DIY. I.] BOUNTY ON SPARROWS. 107 

tion of said city. All general elections held in such city and township 
shall be held at the same voting places as the city elections, with judges 
and clerks appointed in like manner as for the city elections. 

4. Powers to be exercised .by council.] 3 4. The powers 
vested in said township shall be exercised by the city council. 

5. What the city council may provide.] I 5. The city coun- 
cil in such city and township may by ordinance, provide that the offices 
of city and township clerk shall be united in the same person; that the 
offices of treasurer and township collector shall be united in the same 
person ; that the election of highway commissioners shall be discontinued, 
and that the offices of supervisor and poormaster, shall be separated, and 
the poormaster appointed by the council. [As amended June 18, 1883.] 

6. May regulate the number of justices.] § 6. The city 
council in such city and township may from time to time regulate the num- 
ber of justices of the peace, police magistrates and constables to be 
elected within such city and township ; but the number elected to either 
of such offices shall not exceed the number allowed by law to other town- 
ships of like population. 

7. Vacancies.] § 7. Vacancies in any of the township offices 
within such city and township may be filled by the city council. 



BOUNTY ON SPARROWS. 

1. Provisions for bounty. 4. Penalty, 

2. Bounty certificate. 5. Bulletin of information. 

3. Bounty — how paid. 6. False certificate — penalty. 

AN ACT to provide for the payment of bounties for killing English Sparrows. Approved and in 

force July 1, 1891. 

1, Bounty for killing English sparrows.] Be it enacted, etc 
I 1. That every person being an inhabitant of this state who shall kill 
an English sparrow in any county not under township organization or in 
any organized township, village or city in this state during the months 
of December, January and February, shall be entitled to receive a bounty 
of two cents for each sparrow thus killed, to be allowed and paid in the 
manner hereinafter provided. 

2. Bounty certificate.] 3 2. Every person applying for such 
bounty shall take such sparrow, or the head thereof, in lots of not less 
than ten, to the county clerk in counties not under township organization 
or to the clerk of the township, village or city within which such spar- 
row shall have been killed, who shall thereupon decide upon such applica- 
tion, and if satisfied of the correctness of such claim, shall issue a cer- 
tificate stating the amount of bounty to which such applicant is entitled, 
and deliver the same io said applicant, and shall destroy the heads of 
such sparrows. 



108 TOWNSHIP ORGANIZATION. [DIV. I. 

3. Bounty — how paid.] I 3. Such certificate (1) may be pre- 
sented by the claimant or his agent to the county clerk of the county in 
which such sparrow or sparrows have been killed, who shall thereupon 
draw a warrant for the amount on the treasurer of said county, and said 
treasurer shall, upon presentation of said warrant, pay the same from the 
general or contingent fund of said county. 

4. Penalty.] § 4. If any person, in applying to the clerk of 
counties not under township organization, or to the clerk of any township, 
village or cifry, for the certificate stating the amount of bounty to which 
he may be entitled under this act, shall have in his possession or present 
to such clerk the head or heads of any bird or birds other than the Eng- 
lish sparrow, such person shall be deemed guilty of a misdemeanor, and 
upon conviction thereof shall be fined five dollars for each head of such 
bird other than the English sparrow so being in his possession or pre- 
sented to the clerk. And it shall be the duty of the clerk to whom such 
application is made, upon finding the head of any bird, other than the 
English sparrow, among the heads presented to him, to confiscate the 
heads so presented and preserve them to be used as evidence against the 
person applying for the bounty, and refuse to issue the certificate. 

5. Bulletin of information.] I 5. It is hereby made the duty 
of the director of the state laboratory of natural history, to prepare, as 
soon after this act shall take effect as practicable, a bulletin of informa- 
tion for the use of the clerks of counties, townships, villages and cities in 
this state, to enable them to distinguish the heads of the English spar- 
row from those of other birds, and which said bulletin shall be delivered 
to said clerks free of charge. 

6. False certificate — penalty.] I 6. If any clerk of any county 
not under township organization, clerk of any township, village or city 
shall knowingly issue any certificate for the payment of the bounty, pro- 
vided for in this act, for the killing of any bird, other than the English 
sparrow, such clerk shall be deemed guilty of a midemeanor, and upon 
conviction thereof shall be fined not less than ten dollars. [See p. 99, 
ante., head note.] 

(1) Form of Sparrows' Bounty Certificate. 



'*,}' 



State of Illinois, 

° Un y ' J To the County Clerk of said County: I. , Clerk of 

said do hereby certify that has delivered in my office the heads of 

English Sparrows, which, I am satisfied, were killed in said 

during the months of December, January and February, A. D ; that I 

have caused the same to be destroyed, and that said is entitled to the 

sum of being the amount of the bounty granted by the act approved 

and in force July 1, 1891. 

In witness whereof, I have hereunto set my hand, this day of 

189.. 

Clerk. 



DIY. I.] CANADA THISTLES. 109* 



CANADA THISTLES. 

8KCTIOK. 

1. Commissioner of Canada thistles. 

2. Duties of commissioner. 

3. Treatment of thistles on enclosed lands— Appeal, etc 

4. Further treatment 
6. Prosecutions. 

6. Report of commissioner. 

7. Accounts audited. 

8. Appropriations — Control by county board. 

9. Emergency. 

AJf ACT concerning Canada thistles. [Approved and in force March 16, 1872. L. 1871-2, p. 220, 

Rev. Stat, ch. 18.] 

1. Commissioner of Canada thistles.] § L There may be 
appointed by the board of town auditors in counties under town- 
ship organization, and by the county commissioners in counties 
not under township organization, for each township or election 
precinct, and by the city council of any city, or by the president 
and trustees of any town or village, as the case may be, some 
competent person, to be styled " Commissioner of Canada This- 
tles, ' who shall take the oath required of township or precinct 
officers, and shall hold his office for the term of three years, and 
until his successor is appointed and qualified ; and he shall receive 
for his compensation the sum of two dollars a day, for each full 
day necessarily spent in the performance of his duty, to be verified 
by affidavit The board of appointment may, at any time, for 
good cause, remove the commissioner from office, and appoint 
his successor, to serve the remaining portion of his time. 

2. Duties of Commissioner.] § 2. The commissioner of Can- 
ada thistles shall diligently inquire concerning the introduction 
and existence of Canada thistles in his township or precinct, and 
if any are found growing therein, he shall take charge of all such 
growing in the highway and on uninclosed lands, and take care 
that they do not go to seed, or otherwise spread; and he shall 
carefully seek and learn, so far as practicable, the best methods 
for their destruction, and he shall persistently apply, in proper 
time, such remedy or treatment as he shall deem best calculated 
to prevent their spread and to eradicate the same. 

3. Treatment of thistles on inclosed lands— appeal, etc. § 3. 
In case said thistles are found growing on inclosed lands, the 
commissioner shall advise with the owner, agent or occupant on 
their treatment, and if the said commissioner shall deem it 
necessary and expedient for him to fully control the same, he shall 
agree with the owner, agent or occupant on the boundaries of the- 



110 TOWNSHIP ORGANIZATION. [l>IV. 1. 

tract so infected which it is expedient for him to control, and he 
shall mark the same by stakes, or by fence, if thought best; and 
thereafter such infected tract, or so much as from time to time 
remains infected, shall be managed and controlled by the said 
commissioner, for the purpose of destroyiDg said thistles, and so 
long as it may be necessary to complete the work. In case the 
commissioner and the owner, agent or occupant of said land cannot 
agree, as regards the propriety of the commissioner controlling 
such tract, or of the boundaries of the same, then the commissioner 
shall proceed to stake out or mark such boundaries as he deems 
proper, and file a copy of his decision with the town cleik, or, in 
counties not under township organization, with the county clerk. 
The owner, agent or occupant of the land may, if he feels aggrieved, 
appeal from such decision of the commissioner, without bonds, 
within twenty days, to the commissioners of highways of the town, 
or to the county commissioners, as the case may be, who shall pro- 
ceed to view the same, and to hear the reasons for and against the 
decision of the commissioner; and a majority of such board of 
appeal shall decide as to the propriety of taking possession of the 
tract alleged to be infected, and if they decide to take such pos- 
session, what shall constitute the boundaries of the same, and shall 
direct said commissioner to exterminate said thistles, (which are 
hereby declared a public nuisance,) without unnecessarily depriv- 
ing the owner of the land of any legitimate use and enjoyment of the 
same,(l) and the owner or occupant of said land shall pay all cost 
and expense of labor for said extermination, which shall not exceed 
the sum of one hundred dollars, for each infected tract in one year, 
without the consent of the supervisor of said town or county com- 
missioners, as the case may be, and that the sum so expended shall 
be alien upon said tract so infected, and if the owner or occupant 
shall not pay the same to said commissioner on or before the 
first Monday of September of the year the work was performed 
by the commissioner on said tract, the commissioner shall report 

(1) Appeal from Decision of Commissioner of Canada Thistles. 
To I. B-, I. J. and D. I., Commissioners of Highways of the Town of- 



in the County of [or County Commissioners, as the case may be. ,] 

The undersigned, A. B., owner [or agent, or occupant, as the case may 
be~\ of the hereinafter described premises, feeling himself aggrieved by 
the decision of the commissioner of Canada thistles, filed with the town 

clerk [or with the county clerk, as the case may be], on the day 

of , A. D 18 — , does hereby appeal to a ad submit the matter in con- 
troversy to your honorable body according to the statute in such case 
made and provided. 

The grounds upon which this appeal is made are [here briefly state the 
grounds of appeal and description of land.] 
Dated this day of , A. D. 18—. 



D1V. I.] CANADA THISTLES. Ill 

the same to the board of town auditors, in towns under township 
organization, or county commissioners, as the case may be, and 
certify to the same, and that said board of town auditors or 
county commissioners shall certify to the county clerk the amount 
so due on each tract, and it shall be the duty of the county clerk 
to cause the amount so returned to be levied on the lands as cer- 
tified by said board of auditors or commissioners, as the case 
may be, and that said amount so certified, shall be collected in 
the same manner that taxes of the county are levied and collected, 
and the same when collected, to be paid over to the supervisor of 
the town or towns under township organization, and to the county 
commissioners as the ease may be, who shall pay the same out 
on the order of the commissioner to the parties entitled to the 
same, for the labor employed in destroying the thistles on each 
tract for which the money was collected. [As amended 1885. 

4. Further treatment.] § 4. The commissioner shall apply 
the best known means, and use the utmost diligence, in eradi- 
cating the thistles; but he shall not have power to expend in work 
or materials more than $100 on any one infacted tract, without 
the advice or consent, in writing, of the supervisor of the town, 
or of the county commissioners, as the case may be. 

5. Prosecutions.] § 5. It shall be the duty of the commis- 
sioner to prosecute or complain to the proper authorities of any 
person or corporation who may violate any law now existing, or 
which may hereafter be passed, on the subject of Canada thistles. 
[See Kev.'Stat, Crim. Code, ch. § 40, 41. 

6. Report of commissioner.] § 6. The commissioner shall, 
anually, before the first day of November, make a written report 
to the supervisor of the town, or to the county commissioners, as 
the case may be — which report shall be filed with the town clerk, 
or, iu counties not under township organization, with the county 
clerk. The report made to the supervisor shall be publicly read 
at the annual town meeting. Said report shall state — 

First — Whether there are or not any Canada thistles growing 
in the town or precinct. 

Second — If any are growing, where and how many, and when 
and how introduced. 

Third — A detailed statement of his treatment of each infected 
tract, with cost and result. 

Fourth — He shall report such other matters as may be required of 
him by the board of town auditors, or by the county commissioners. 

Fifth — He shall state his views on their further treatment, and 
make such suggestions and recommendations as he may deem 
proper and useful. 

And he shall also forward a copy of said report to the secretary 



1 12 TOWNSHIP ORGANIZATION. [D1V. I. 

of the state board of agriculture, who shall collate and report the 
same to the governer by the first day of December of each year.(l) 

7. Accounts audited.] § 7. The board of town auditors, and 
the county commissioners in counties not under township organ- 
ization, shall audit the accounts of the commissioner, both for his 
services and for the money expended or labor employed by him ; 
and they shall provide for their payment as they now do for other 
town or county expenses. 

8. Appropriations— control by county board.] §8. The boards 
of supervisors and county commissioners may make appropria- 
tions from the county treasury to aid in destroying the Canada 
thistle in any one or more towns or precincts of the county ; and 
in case they deem it expedient, they may assume control over any 

(1) Form of Report of the Commissioner of Canada Thistles. 

To A. B., Supervisor of the Town of , in the County of [or to 

the County Commissioners, as the case mag be.] 

The undersigned, commissioner of Canada thistles for the town of , 

said county, would report that said thistles are now growing in said town 
[as the case may be] on the farm of J. D. [describe its location,] and that the 

same were introduced about by ; that his treatment of each infected 

tract of land, with the cost and result, has been as follows [state particulars:] 
and that he believes said thistles should be treated for another year in the 
same way, by which time they will probably be entirely eradicated. Said 
commisioner would suggest and recommend that, etc. C. D., 

Commissioner of Canada thistles for the town of . 

Dated this day of , A. D. 18—. 

Form of Decision of Commissioners of Highways in case of Appeal, 
County, I 

Town of . / ss 

The commissioners of highways of said town of , having heard 

the appeal of A. B., from the decision of C D., commissioner of Canada 

thistles of said town, riled in the town clerk's office, on the day 

of , 18 — , do affirm the decision of said commissioner, and that the 

boundaries of said infested tract remain as marked by said commissioner, or 
"We do in all things reserve the decision of said commissioner," or if the 

boundaries are changed add after the as follows: We do change the 

boundaries of said infected tract as follows [here set forth the boundaries.] 

In witness whereof, we have hereunto set our hands this day 

of , A. D. 18 — . Signed by the Commissioners. 

Form of Decision of Commissioner of Canada Thistles. 
County. | ee 



Town of 

The undersigned commissioner of Canada thistles for said town of- 



having found Canada thistles growing upon the enclosed hands of A. B , 
in said town, and having advised with him in the matter, and not bein*<: 
abletoagree with him in the premises, and said commissioner deemiug it 
expedient that he should fully control the same, he proceeded and marked 
out the following as the track of land of said A. B., infected by Canada 
thistles to-wit -.[here describe the boundaries]. 

Witness my hand this day of , A. D. 18—. 

C. D., Commissioper of Canada Thistles. 



DIV. I.] PUBLICATION OF ANNUAL STATEMENT. 113 

one tract or of all the Canada thistles in the county, and make 
such provision as they may deem necessary, and impose penalties, 
not exceeding $100 for each offence, for a violation of any pro- 
visions, by-laws or regulations made by them on this subject, to be 
sued for by the commissioner, in the name and for the use of the 
proper county, before any justice of the peace having jurisdiction. 
Whenever the board of supervisors or county commissioners 
shall decide to assume control, and so long as they exercise it, 
their jurisdiction shall be superior to that of the commissioner. 
9. County board appoint commissioner — Penalty.] § 2. And 
it is hereby made the duty of county boards in counties under 
township organization, where town auditors have failed or refused 
to appoint a commissioner of Canada thistles ; upon the petition 
of twenty-five land owners, of said or adjoining town or towns, 
stating the failure of said board of auditors to appoint a com- 
missioner for said town, and of the necessity for the same ; to 
appoint a commissioner of said town, (who shall be a resident of 
said town) who shall hold his office for the same length of time, 
as if appointed by the board of auditors, and shall receive the 
same compensation, and said compensation shall be audited and 
allowed, and paid by the township for which he was appointed, 
the same as if he had been appointed by the board of auditors 
of said town, and his duties shall be the same, and the board of 
town auditors or county board may appoint so many assistant 
commissioners as they may deem necessary to thoroughly perform 
the duties of any town; which assistants shall receive the same 
compensation for like services, as the commissioner, and whose 
duties shall be the same, and the commissioner of Canada thistles 
or assistants refusing or neglecting to perform their respective 
duties shall be fined in a sum not iess than ten dollars nor more 
than one hundred dollars for each offence, such fine to be sued for in 
any court of competent jurisdiction, in the name of the town, on 
complaint of any land owner of the town; said fine, when collected, 
to be paid to the supervisor or county commissioner and become 
a part of the town or precinct fund. [Amendatory Act, 1885. 

PUBLICATION OF ANNUAL STATEMENTS.(l) 

Section. 

1. Officers to publish anual statements. 

2. Penalty. 

AN ACT to require officers having in their custody public funds, to prepare and publish an 
Annual Statement of the receipt and disbursment of such funds. [Approved May 30, 1881. 
In force July 1,1881.] 

1. Officers to publish annual statements.] § 1. That each 
and every public officer elected or appointed, of each and every 

(ljPnnlic officers under township organization, who liave Hie ens ody of pi'blic 

funds, are: the town supervisor, treasurer of the commissioners of highways, and overseer- of 



114 TOWNSHIP ORGANIZATION. [DIV. I. 

county and township in this State, who shall, by virtue of his or 
her office, have the custody of public funds, shall at the expira- 
tion of each fiscal year, prepare a statement of the amount of 
public funds received and expended by him or her during the 
fiscal year just closed; which statement shall show the amount of 
public funds, if any, on hand at the commencement of said fiscal 
year, the amount of public funds received, and from what sources 
received, the amount of public funds expended and for what pur- 
poses expended; and the officer making such statement shall sub- 
scribe and swear to the same before some person authorized to 
administer oaths; and such officer shall cause such statement to 
be published in some newspaper published in the county in which 
such officer holds his or her office, for one week, and if no news- 
paper be published in such county, then such officer shall make 
three (3) written copies of such statement, and post them in three 
(3) of the most public places nearest to the location of his or her 
office : Provided, That the provisions of this act shall not apply to 
sheriffs, circuit clerks, county clerks, county recorders, county 
superintendents of schools, county treasurers, county collectors 
and township collectors in counties under township organization: 
And provided further, that the cost for the publication of said state- 
ment shall not exceed the sum of one dollar ($1) per one hundred 
words, to be paid out of the funds in the hands of the officer making 
such statement : And provided further, that said public officer shall 
not be required to have such statement published if he shall be 
unable to procure such publication at the price allowed by this act. 
2. Penalty.] § 2. Any public officer of any county or town- 
ship in this State, who, by virtue of his or her office shall 
have the custody of public funds, and who shall refuse or ne- 
glect to comply with the provisions of the first section of this act, 
shall be deemed guilty of a misdemeanor, and upon conviction 
thereof, shall be fined not less than fifty dollars, ($50) nor more 
than five hundred dollars ($500) at the discretion of the court, 
which fine shall be paid into the treasury of the county or town- 
ship in which the officer convicted of said misdemeanor shall hold 
his or her office ; and it shall be the duty of the State's Attorney 
for the county in which said misdemeanor is committed, to bring 
suit against any public officer charged with the violation of the 
provisions of this act in any court having jurisdiction. 

highways in road districts in towns that have adopted the labor system. The foregoing officers 
would, therefore, seem to come within the provisions of the above act, and be required to prepare and 
publish at the end of each fiscal year a statement of the funds r< cerved and expended by them. 

The fiscal year for supervisor and treasurer of the commissioners of highways it is understood 
ends on the diy before the Tuesday next preceding the annual town meeting in April. The 
fiscal year for overseers of highways ends on the day before the second Tuesday preceding the 
annual town meeting. 

Township school treasurers are likewise public officers, having the custody of 
public funds, and as such would also seem to come within the provisions of the above act. 

Blank lorms for making Stat» mmts for Publication by public officers, in the 
best form and style, are furnished at The Lkgal Adviser office, Chicago. 



DIV. O.] ROADS AND BRIDGES. 115 



DIVISION II. 

ROADS AND BRIDGES. 

IN COUNTIES UNDER TOWNSHIP ORGANIZATION 

4N ACT in regard to roadi and bridges in counties tinder township organizati<<n. and to repeal *• 
•fit and part* of acts therein named. [Approved June 23, 1863. In lore* J ulj i, 1883.] 

PUBLIC HIGHWAYS DEFINE!* 

CSCTION. 

1. Public highways. 

1. Public highways.] § 1. That all roads in this State which 
have been laid out in pursuance of any law of this State or of 
the territory of Illinois, or which have been established by dedi- 
cation or used by the public as a highway for fifteen years, and 
which have not been vacated in pursuance of law, are hereby de- 
clared to be public highways. (1) 

(1) At to the law concerning the vacation of highway* see post, g SL 
A highway is a public way for use of the public in general, for passage and traffic 
without distinction. Persons making use of horses as the means of travel or tranc by the high- 
ways have no rights therein superior to those who make use of them in other permissible modes. 
Improved methods of locomotion are admissible and cannot be excluded from existing public roads 
if not inconsistent with the present methods. 34 Mich. R., 1V1. 

Navigable river* and public streams are public highways, and every person has an 

equal right to a reasonable use of thern as sucu. Davis v. Winslow, 51 Maine R., 2b\L 

Plank roads are undoubtedly public highways, and different from common highways 
in the mode of construction, and the taking of tolls, and on the payment of the latter, travelers 
have the same right to use them as they have to use other highways. And where the company for- 
feit their charter, or abandon it, or suffer the road to become out of repair so as to amount to 
an abandonment, the right of way of the company ceases and the road becomes a common highway. 
Craig y. The People ex rd., 47 111. K, 4bS. 

The fact that a town has expended money and labor on a road, and Included 
it in the rate bills of the highway surveyors, as a public road on which highway taxes are to be 
expended, and has left it open for public travel, and all as a common highway, tends to prove 
that the town has adopted it as a highway, therefore a bridge on said highway, necessary to con- 
nect the portions of it on each side «1 ins bridge, was alio adopted, i'oliom t. Underbill, 86 Vt» 
R.5S0. 

There are several modes of acquiring a highway or public right of way. L Br con- 
demnation, so called. 2. Bv dedication. 3. Bv prescription or user. Highways arc also allowed 
by necessity. Daniel* r. The People, 21 111. R., 439; Grube v. Nichols, 36 111. &., 92. 

L HIGHWAY BY CONDEMNATION. 

Condemnation is the ordinary mode of acquiring a highway prescribed by the 

statute, by petition to the commissioners, an examination and survey of the route, and a declara- 
tion of establishment, if it is found necessary for the public interest. The right is giyen to take 
the land of individuals bv awarding compensation, which is called condemnation. Xhc property 
is taken by what is called the right of eminent domain. See post, I bL 

IL HIGHWAY BY DEDICATION. 

Dedication is the act of donation, or appropriation of land by the vwner to the 
nse of the public generally, as a common way; and an acceptance, on the part of the public 
of the land so appropriated. Bouv. Law Diet., title "Highways." Gentleman ▼. Boule, 82 HI. 
fc , 272. 

To make the dedication complete, it is essential that there should be an acceptance 
•n the part of the public, a» well as a donation on the partof the individual Oswego v. Oxvotpo Oaiml 
Cb., 2 Se)d«m, 283. Although the owner may declare land dedicated to the public for a highway by 



116 BO ADS AND BRIDGES. [DIV. IL 



DUTIES OF COMMISSIONERS OF HIGHWAYS* 

&BCTIOX. 

'1. Commissioners of highways have charge — permanent roads. 

3. General superintendent — contracts, etc. 

4. Commissioners prohibited from being interested in contracts or 

purchases. 
6. Duties of commissioners. 

6. Drainage— joining with the adjoining land owners. 

7. Willow hedge destroyed — tree planting. 

8. Ditches and drains — entering upon adjoining land. 

9. Grading— sidewalks — corner stones — culverts. 

10. Organization of board of commissioners— officers— meetings. 

11. Poll-tax — collection in money. 

12. Collection on execution. 

13. Semi-annual meetings of commissioners to fix tax rate— limit of 

rate. 

14. Additional tax rate in case of emergency. 

15. Assessments to pay damages. 

16. Levy certified to county clerk — taxes in cities, towns and villages, 

17. Payment of damages. 

18. Keport of commissioners to town auditors. 

2. Commissioners have charge— Permanent roads.] § 2. The 

commissioners of highways shall have charge of the roads and 

fencing it out in that form,or by other evidence of dedication, yet if it be not accepted by the pub- 
lic, it will be no dedication, and he may resume the land at any time. Becker v. St. Charles, 37 Mo. 
R., 13. But if after such act of dedication by the owner, it is accepted by the public, he cannot 
change his purpose and resume the grant. Proctor v. Town of Lewistown, 25 111. R., 153. 

To effect a dedication, there must he an intent to do so on the part of the owner. 
Reese y. City of Chicago, 38 111. R., 323; C. B. & Q. R. R. Co. v. Bunker, 44 111 R., 28, and authorities 
cited; and this intention must be unequivocal and free from doubt by acts inconsistent with the 
intention to dedicate. Tallmndge v. East River Bank. 26 N. Y. Rep. (12 Smith), 105; Lownsdale v. 
Portland, 1 Oregon R., 397; Kelly v. Ciiy of Chicago, 48 111. R., 388. 

The vital principle of dedication is the intention to dedicate* Barding v. Town of 
Hale, 61 111. R., 192. 

The dedication or intention may be manifested or established by grant or written instrument: 
by declaration or by acts of the owner. Gentleman v. Soule, 32 111. R., 272. Or it may be inferred 
from long and uninterrupted user by the public with the knowledge and consent of the owner. 
Mclntyre v. Storey, 80 111. R., 127. 

The intention must be signified by something more than symbols of uncertain import, by 
which it has pleased a draftsman to decorate a plan of property. David v. New Orleans, 16 La. 
An. R., 404. 

Declarations of the owner, made after the alleged dedication, may be received 
as evidence of intention Proctor v. Town of Lewistown, 25 HI. R^ 153; Chapin r. State, 24 Conn. 
R.,236. 

It is not necessary that an intention on the part of the owner of the land to dedicate 
the same at the time the public commenced using it should be shown. Such intention may a» well 
have been formed and entertained subsequently. Town of Havana r. Biggs, 58 111. R., 483. 

Dedication may be proved against the owner by his express declaration, 

whether by deed or by paroCor by any act unequivocally evincing his intention to dedicate, as by 
his opening a way to the public over his land, or it may be impliea by his acquiescence in the use 
of his land for a public way. Angell on Highways, C. 8; 8 Kent. Conou, 451; Case r. Favier, 12 Minn. 
R., 89; Wilder v. City of St. Paul, 12 I<L, 89. 

The acceptance of a dedication is usually manifested by acts, such as taking charge 
vt and repairing the highway by the proper county or town authorities. Gentleman v. Soule, 32 m. 
R., 272; Rees v. Ciiy of Chicago, 38 111. R., 323; and it may be shown by the actual use by the public 
Alvordr. Ashley, 17111. R. 363; Dimonr. The People, 17 HI. R., 416; Marcy v. Taylor, 19 Id., 634; 
Darnels v. The People, 21 Id., 442; or by vote of the town in appropriating money for repairs. State 
v. Atherton. 16 N. Hamp. B., 203; Forbes v. Balenseifer, 74 111. 183; Com'rs of Highways Town of Day- 
ton v. Corners of Highways Town of Rutland, 84 HI. 279. 

A town could probably accept a dedication by laying out a highway over the premise! dedicated 
on petition, as in other cases of laying out highways. 



DIY. II.] COMMISSIONERS OF HIGHWAYS. 117 

bridges of their respective towns, and it shall be their duty to 
keep the same in repair, and to improve them so far as practi- 
cable. Whenever the available means at their disposal will per- 

No particular length of time is necessary for evidence of dedication. Marcy T. 
Taylor, 19 111. B., 634; Rees v. City of Chicago, 38 Id., 323. 

All that Is required Is the assent of the owner of the soil to the public use and the 
actual enjoyment by the public of tbe use for such length of time that the public accommodation 
end private rights acquired on the faith of it would be materially injured by a denial or interruption 
of the enjoyment. But the question of a valid dedication, as between the owner and the public, 
generally depends npon the intention of the owner to devote the soil to public use and the accept- 
ance by the public. City of Chicago v. Wright, 69 111. R., 318. 

Dedication may be proved like any other fact. Rees v. City of Chicago, 88 111. R., 528. 

But the evidence must be positive and certain. Lownsdale v. Portland, 1 Oregon R., 397. 

To show the right, by dedication, the proof should be satisfactory, either of an 
actual intention to dedicate, or of such acts and declarations as should equitably estop the owner 
from denying inch intention. Kyle v. Town of Logan, 87 111. R., 64. 

The dedication is a mixed question of law and fact % and the circumstances of the 
case with reference to the dedication, and the quantity of land taken should be left to the jury. 
Alvord v. Ashley, 17 111 R., 369. Waugh v. Leech, 28 Id., 489. 

A straight line drawn through the centre of a Virginia fence, which has been continued for 
more than twenty years fronting on a highway, the boundaries of which cannot be otherwise as- 
certained, is to be deemed the true boundary, and there is no presumption that the land enclosed 
between that and the angles of the fence next to the highway was not intended to be dedicated to 
public use. Holbrook v. McBride, 4 Gray (Mass.) R., 215. 

A dedication ts not vitiated because it may have been effected by the payment of 

money. Rees v. City of Chicago, 38 111. R., 323. But a dedication on condition is void if the condi- 
tion is not complied with. Lownsdale v. Portland, 1 Oregon R. . 381. 

The soil of a road dedicated to the public belongs to the original owner, and reverts to him when 
it ceases to be applied to a public purpose. Mendez v. Dugart, 17 La. An. R., 171. 

A party will be estopped from denying a dedication which has received his grantor's 
acquiescence. Rees v. City of Chicago, 38 111. R., 323; or which he has acquiesced in by a partition 
of lands in which he is interested. McGregor v. Reynolds, 19 Iowa R., 397. 

To constitute a highway by dedication the passage way should be a thoroughfare and nor a 
eeurt closed at the end as a means of access to the property of private persons, but a means of pas- 
sage for the whole community from one public place to another. Holdane v. Trustees of bold 
Spring, 23 Barb. R., 103. 

A highway acquired by dedication Is like any other highway, and cannot be 

altered or changed at the will of the owner of the land over which it passes. Holesoft v. King, 25 
Ind. R., 352. 

A road may exist part by dedication and part by record, and If the owner of land dedi- 
cated a portion of the road in use in exchange for a portion of a way laid out, the portion so dedi- 
cated would be a valid road. Town of Havana v. Biggs, 58 111. R., 483. 

The dedication can be made only by the owner of the title to the ground. Kyle v. Town of Lo- 
gan, 87 HI. R., 64. 

The mere act of working, repairing or traveling on a road, with the knowledge and 
assent of the owner, does not constitute it a highway. Harding v. Town of Hale, 61 111. R., 192. 

But long user by the public connected -with such acts of acceptance and acquiescence 
of the owner tend to show a dedication; user in such case does not depend upon any fixed period of 
time. Hiner v. Jean-pert, 65 111. R., 428. 

The acknowledging and recording of a town plat, is the highest evidence of the 

dedication of the streets and alleys marked upon it, and until the town becomes incorporated, the 
streets are under control of the county or town authorities. The streets as platted cannot be en- 
larged or diminished, but the highway authorities may direct how much of a street shall t>e 
worked upon or improved. Streets dedicated by a plat, unless lawfully reclaimed by the person 
who has platted, will forever remain to the use of the public. Waugh, suing, etc., v. Leech, 28 DL 
R., 489. 

The plat of an addition to a town, although not acknowledged and recorded, 
operates as a dedication of the streets, but not as a conveyance of the fee of the streets to the cor- 
poration. Banks v. Ogden, 2 Wallace, R. (U. S.), 57. 

A river, though not navigable in all its parts, may be dedicated as a highway by 
the proprietors of land along Us banks, in the same manner as a highway may be dedicated upon 
*ry land. Yates v. Judd, 18 Wis. R , 118. 

"Where a highway was laid out on the line between two farms, and in 1856 was 
•pened by the owner of one of them its full width, instead of one-half thereof, the true line not 
being then known, and the fence so remained until 1872, when the mistake as to the line was first 



118 ROADS AND BRIDGES, [DIY. li- 

mit, they shall construct permanent roads, beginning where most 
needed. The work on roads shall be done timely, and in accord- 
ance with the best known methods of road-making, by proper 

discovered; this act of such owner was held not to be a dedication on his part of the excess of 
land thus opened to the highway, and that he had a right to correct the mistake, and remove his 
fence accordingly. Manrose v. Parker, 90 111. 581. 

It is not essential that the intention to dedicate be evidenced by words, either written 
or spoken, if the acts of the party indicate an intention to dedicate. Wragg ▼. Penn 'low as hip, M 

ni. r., n. 

A permissive nse by the public with consent of the owner does not prove a dedica- 
tion. It is a mere license that may be revoked. White v. Bradley, 66 Me. R., 254. 

To constitute a dedication th* owner must give the right of way to the public, 
and it must be accepted and appropriated by the public authorities, and the acts of both the donor 
and the public authorities should be certain. Fisk v. Town of Havana, 88 111. R. 208. 

A mistake in dedication, as to the amount of land dedicated, may be corrected, and 
the owner of the land may reclaim so much thereof as was not intended to be dedicated, even alter 
the lapse of eighteen years. Manrose v. Parker, 90 111. 581. 

Where the owner of land in 1863 gave his written consent to the establishment of 

a highway over his land, which he sold in lb70, and the road was not opened until 1877, ii was 
held that the public had not abandoned its right to the land for a road. Wenzel v. Kempmeter 
68 Iowa, R., 255. 

In the case of a bridge the acceptance of a dedication may be manifested by aer« of 

the commissioners of highways, such as levying a tax to aid in rebuilding it, opening a road to 
connect with the bridge and keeping such road in repair. Commissioners of Highways of Town 
if Dayton v. Commissioners of Highways of Town of Rutland, 84 111. R., 279. 

IIL HIGHWAY BY PRESCRIPTION OR USER. 

9. Prescription is the mode of acquiring a highway by long continued use* 

The uninterrupted use of land by the public for a highway for the period of twenty years is suffi- 
cient to establish the existence of a highway. Qreen v. Oakes, 17 111. R., 249; Daniels v. The People, 
21 111. R., 439; Alvord v. Ashley, 17 Id. 863. And this right continues until it is clearly and unmis- 
takably abandoned. A partial deviation is not an abandonment. Town of Lewiston v. Proctor, 
27 111. R., 414. After twenty years user by the public the law presumes a grant of the right by the 
owner. Gruber. Mchols, 36 111. R., 92. Or it may be presumed that such road was legally laid 
out, if such it is claimed. State v. Boscawen, 82 N. Hamp. R., 331. The right of the public will 
become complete without regard to ownership, whether it be individual or governmental. Dimon 
v. The People, 17 111. R., 416. But when a road has not been used twenty years, its legal existence 
may be disputed. Eames v. Northumberland, 44 N. Hamp. R., 65. 

Twenty years is the shortest time within which the publio can acquire a pre- 
scriptive right to use a road. Kishlman v. Hecht, 77 111. R.. 670. Nor can the time during which 
various and distinct lines of travel have been used be so united as to make up the requisite time 
to establish a prescriptive right to any given single line of road. In case of a highway claimed 
by prescription, the travel may slightly deviate from the thread of a road which is being used, to 
avoid an obstruction, and still not change the road itself, But it is otherwise where the whole 
length of the road is abandoned for eight or nine years, and is not sufficiently traveled to prevent 
its being obstructed by the growth of weeds and brush. In such case there is not that continued 
user which is absolutely necessary to establish a prescriptive right. The public cannot acquire a 
prescriptive right to pass over a tract of land generally, but it must be oonfined to a specific line 
or way. Gentleman v. Soule, 32 111. R., 271. 

After twenty years of peaceable use. the law presumes a grant. Kishlman v. HechL, 

17 111. R^ 670. 

The uninterrupted use of land as a high-way for twenty years time, constitutes 
It a public highway without regard to the intention of the owners. Devenpeck v. Lambert 44 
Barb. R., 596. 

Where one has permitted the public to use a road across his land for twenty years, 

but during that time has kept a gate at each end of the road, the right acquired by the public is a 
qualified prescription, and the commissioners of roads will be enjoined irom removingthe gates. 
Green v. Bethen, 30 Ga. R., 896. The use must be not merely permissive, but adverse. Henderson 
v. Alloway, 3 Tenn. Ch. 688; Fisk v. Town of Havana, 88 111. R., 209 

Mere user on the part of the public of a right of -way does not give the public a 

public highway, unless it is accompanied by act showing that the use is under a claim of right, 
and not merely by permission of the owner. Sharp v. Mynalt, Sup. Ct of Tenn., 1878; White ▼. 
Bradley, 66 Me. B., 254. 

The public do not acquire a public road over vacant and unoccupied land by travel 
over the same, for twenty years or more, merely from acquiescence on the part of tha owner. 
Kyle v. Town of Logan, 87 111. R. , 64. 



DIV. II. J COMMISSIONERS OF HIGHWAYS. 119 

grading and thorough drainage by tile or otherwisp, as may be 
expedient, or by the application of gravel, rock or other ma- 
terial. (1) 

If a road is used and traveled by tlie public as a highway, and is recognized 
and kept in repair as such by the proper authorities, proof of these facts furnishes a legal pre- 
sumption, liable to be rebutted, that such road is legally established as a public high-way. It is 
not nece>sary, in the first instance, to produce record evidence of the existence of a road; and 
parol evidence is admissible to show where a road is located. Eyman v. The People, 1 Gilm. R., 
4; Needy v. Brown, 1 Gilm. R. 10. 

Whether highway is by user only or by the statute, It must be of the width pre 
scribed by law, where the dedication or donation is not expressly or impliedly restricted by the 
owner; when not so restricted it is not confined to the mere track which is beaten by carriages 
and the feet of animals in passing along, but includes and carries with it the width as provided 
by statute. Bumpers v. Miller, 4 Mich. R., 164. 

Where, through the apparent abandonment of a public way for an unreasonable 
time, private rights have accrued, the public are estopptd. Opinion Attorney General Beery, 
(Minn.,) Vol. 1., p. 69. Parrish v. Slevens, 1 Oregon R. 59. 

The public have no right, however, under the law of prescription, to use and 

occupy the soil of an individual adjoining navigable waters, as a public landing and place of 
deposit of property in its transit, against the will of the owner, although such user has been con- 
tinued for more than twenty years. The user cannot be urgedby the public either as the founda- 
tion of a legal presumption of a grant, and thus justify a claim by prescription, or as evidence of 
dedication of the premises to public use. Pearsal v. Post, 20 \\ end. R., Ill; S. C. on Error, -,2 
Wend. R., 425. 

IV. HIGHWAY BY NECESSITY. 

A highway by necessity, is where the traveled road becomes obstructed or 

impassable for any cause. In such case the right of the public is allowed to pass over adjoining 
lands, even though the land may be sown with grain. 1 Ld. Raym., 1 Rolle Abr., 390a, 7 Cush. 
R., (Mass.,,, 408. But such right gives the public no permanent easement in such adjoining lands. 
State v. Northumberland, 44 N. Hamp. R., 628. 

Lands adjoining a public highway, remaining uninclosed, are considered as 
dedicated to the public use, and no action will lie by the owner against any person traveling orer 
them. Cleveland v. Cleveland, 12 W r end. R., 172. 

(1) The construction and improvement of public roads tends to mark distinctly the 
progress of society. This is a subject which has claimed the attention of all prosperous and well 
regulated communities in all ages of the world. In England, every parish is bound of common 
right to keep the high roads that pass through them in good and sufficient repair; unless by reason 
of the tenure of lands, or otherwise, this care is consigned to some particular private person. From 
this burthen no man was exempt by the ancient laws of that country, whatever other immunities 
he might enjoy; this being a part of the three burdens to which every man's estate was subject. 
For the most part the care of roads, only, seems to be left to the parishes, that of bridges devolving 
mostly upon counties at large. By Stat. 22 Hen. VIII. chap. 5, if the parish neglected those re- 
pairs, they might formerly, as now, be indicted for such neglect; but it was not then incumbent on 
any particular officer to call the parish together and^set them upon this work; for which reason, by 
the Stat. 2 and 3 Ph. and M., chap. 8, surveyors of highways were ordered to be chosen in every 
parish. See 1 Black. Com., 358. Like officers in the United States are designated by different ap- 
pellations, as surveyors, commissioners, overseers, supervisors, etc. 

The construction of roads and bridges, under our system, Is for the most part accom- 
plished through our township organization; the counties contributing towards the construction of 
bridges, in cases where the expense would be too onerous,to be wholly borne by the towns in which 
they are situated. The statute in express terms, gives to commissioners of highways, when elected, 
the care and superintendence of the highways and bridges of the town, and confers upon them ail 

Eowers requisite for the execution of their trust. They are not directly responsible to the town, 
ut are themselves a species of quasi corporation, with power to sue and be sued, having legal suc- 
cession and deriving their authority, not through the town, but directly from the statute. The 
towns have no power to give the slightest direction or instruction to these officers as to the per- 
formance of their duties. Commissioner 8 of Niles v . Mai tin, 4 Mich. R., 557. c ommissioners, etc. 
v. Baumgarlen, 41 111. R., 254. 

Towns have not the power, at town meeting, to direct the commissioners to remove a 
fence from a highway. Gray et al. v. Waterman, 40 111. R. 523. The duty of the commissioners in 
^Ihis regard is prescribed by the statute, which they are bound to observe. See post \ 53. 

Concerning the duties of commissioners of highways in keeping roads in repair, 
Chancellor Kent says: This seems to be a general duty, applicable at all times and in all places, 
yet when we come to read the details of their duty, we perceive it does not exist absolutely, but 
arises only when the commissioners have money in hand from forfeitures and penalties, or which 
have been paid over to them under the direction of the supervisors. Baitktt v. Crazier, 17 Johns., 



120 EOADS AND BRIDGES. DIV. n J 

3. General superintendent — Contracts, etc.] § 3. In order 
to insure efficiency, they may employ a general superintendent 
outside their own body to work and to execute their orders; or 

452. See also to the same effect, Oarlinghouse v. Jacobs, 29 N. Y. R., (2 Tiffany), 297, Davis, J., dis- 
senting. When commissioners have not sufficient funds for all purposes, they may exercise discretion 
as to which of the bridges in the town they will undertake to repair. They will be presumed to have 
exercised that discretion in good faith, and cannot be made responsible, in a civil action, for its ex- 
ercise. Gurlinghouse v. Jacobs, 29 N. Y. R., (2 Tiffany), 297. They have power to buy, at the 
expense of the town, all necessary timber, etc., for repairing roads and bridges within their juris- 
diction. Wells v. Goffdown, 16 N. Y. R., 53. See post, I 2-5. 

The powers of commissioners of highways are co-extensive with the territory in- 
cluded in the public way, and they may work and improve every part and parcel of it at pleasure, 
being only responsible for a wanton or malicious injury to the rights of adjacent owners. In 
villages' or other thickly settled portions, where their powers are not superseded by acts of incor- 
poration or otherwise abridged, they may make reasonable and suitable provisions for walks or 
passways for foot passengers at the sides of the street or highways. Graves & White v. Otis and 
others, 2 Hill R., 466. 

Highway commissioners would have no authority to expend money committed to him for the 
repair of highways in changing the line of travel, and constructing a new road. "J odd v. Row ey, 
8 Allen, R. (Mass.), 51. But this probably does not apply to to the case of a slight departure from 
the established road from necessity to avoid a formidable obstruction. 

Commissioners of highways cannot, hy virtue of their office, bring suits to recover 
damages against individuals or corporations, for illegally entering upon and taking possession of 
the public highways or bridges of their town. Neither have the electors of a town, at a town 
meeting, power, by resolution or otherwise, to authorize such commissioners to bring an action in 
their own names, or in their name of office, for such injuries. Such a resolution if passed at town 
meeting would not bind the town. Thus, where the electors of a town, at town meeting, directed 
the commissioners of highways to prosecute a turnpike company for entering upon and taking pos- 
session of a public highway and bridge in that town, and the commissioners accordingly brought 
a suit for the cause of action in their names as commissioners, and had judgment against them. 
Held, that they could not sustain an action against the town to be reimbursed their costs and ex- 
penses, or the costs recovered against them in that suit. The electors of a town cannot bind the 
town, except in manner prescribed by law. Cornell v. Guilford, 1 Denio R., 510. See Township 
Org'n Act, Art. 4, Sec. 2, and note. 

Commissioners of highways,*though not expressly authorized by statute, have the 
power to sue when necessary to the performance of their duty. This would seem to follow from 
the nature of their office. Overseers v. Overseers, 18 Johns. R., 407; 1 Cowen R., 260; 3 Wend. R., 
183; 7 Id., 131; 19 Id., 50. In New York it is held, they cannot maintain an action in their official 
title alone; they must sue in their individual names, adding their official title, as A., B. and C, 
" commissioners of highways of town of ." 4 Hill, 136; 5 Id., 215; Denio R., 510. And com- 
missioners who advance their own money to pay the claim of an attorney for such services, and 
take an assignment of the claim, may recover the amount from the town. Dantz v. Dantz, 44 Barb. 
R., 459. 

Where the commissioners of highways make themselves parties to a proceeding 
to reverse a decision of the supervisors, by writ of certiorari, and are unsuccessful, a judgment 
against them for cost is proper. If they were acting in behalf of the town, they should have 
appeared in its name and not their own. Commissioners, etc., of Sonora v. Supervisors of Carthage, 
etc., et at., 27 111. R., 141. 

But in awarding a peremptory writ of mandamus to compel the commissioners to lay out a road 
•which had been ordered on appeal to supervisors, it is error to render judgment for cost against 
them. Costs in such case should be awarded against the town. Commissioners of Highways v. 2 he 
People ex rel, 38 111. R. 347. 

Commissioners of Highways are individually liable in an action on the case for mak- 
ing a drain or ditch, and a grade or embankment, so near the land of a party, and in so unskillful 
and careless a manner as to cause the rain and surface water running from such drain to flow 
upon the plaintiff's premises to his injury. The work of constructing or repairing a public high- 
way is not a judicial, but a ministerial act, and must be performed with a proper regard to indi- 
vidual rights, as well as the public accommodation, and for the negligent performance oi ministerial 
acts the commissioners of highways are personally responsible if injury result to others. Tearney 
et al. r. Smith, 86 111. R., 391. 

Towns are not liable to a private action for damages, occasioned by the neglect of 
the town authorities to keep their public highways in order, either by the common law or under 
any statute of Illinois; in respect to that character of liability, there is no difference between the 
authorities of counties, and their powers and duties in regard to public highways, and towns estab- 
lished by law as civil divisions of counties merely, and the doctrine of the case of Hedges v. The 
County of Madison, 1 Gilm. R., 567, declaring that counties are not liable to such private actions, 
applies to towns of that description. Town of Waltham v. Kemper, 55 111. R., 346. 

On the subject of liability of towns for neglect to keep highways in repair, see Township 
Org'n Act, Art. IV, g 2, note to 1st clause. 



DIY. H.] COMMISSIONERS OF HIGHWAYS. 121 

they may divide the work, let contracts, appoint overseers, em- 
ploy laborers or such other agencies as they may deem expedient 
and most to the interest of the town.(l) 

4. Commissioners prohibited from being interested in con- 
tracts.] § 4. In letting contracts, employing labor or in pur- 
chasing tools, machinery or materials, the commissioners shall 
not have directly or indirectly any personal pecuniary interest 
in connection therewith. The commissioners shall not have 
power to let any contract, purchase tools, machinery or materials 
except as ordered by the board at an authorized meeting. (2) 
5 Duties of Commissioners.] § 5. Their duties shall include : 
1. To lay out, alter, widen or vacate roads as hereinafter pro- 
Tided, and to exercise such care and superintendence over roads 
and bridges as the public good may require. (3) 



A town is not liable for tlie unlawful conduct of commissioners of highways in 
diverting from its course a stream of water, in the improvement of a public highway, whereby the 
water is caused to Mow upon the land of another. County v. Town of Hartland, 95 111. R., 516. 

Commissioners of Highways may be liable for a failure to ascertain a defect in a 
bridge, if, by reasonable inspection, they might have done so. Bustwick v. Barlow, 21 N. Y. R., 177. 

(1) Commissioners of highways cannot bind their towns by any contract, nor 

exercise any other powers not conferred on them by statute. Brawns v. Town of Jr'toria, 82 111. 
E.,11. 

One of the commissioners of high-ways cannot waive the execution of a written 
contract without the authority of the others. Russell v. Minteer, t>3 111. R., 150. 

The commissioners of highways have no power to incur indebtedness for road 
and bridge purposes, in any fiscal year, beyond the amount of the taxes already levied for that 
year. In other words, they can in no one year expend lawfully more than the tax levied for that 
year. Being powerless toborrow money, they are equally so 10 contract indebtedness, except 
tbat they may have such work done and repairs made, and give orders on their treasurer to the 
extent and not beyond the amount of tax already actually levied by them. After this- levy is 
made they may incur indebtedness in the discharge of their duties before its collection. Com- 
missioners of Highways, ete., v. JS'ewell, 80 111. R., 581. 

The commissioners have no authority to expend money on roads and bridges, in 
their towns or districts, which is not in the treasury, or which is not actually provided for by a 
levy. They can nut anticipate a tax to be afterwards levied, and the annual revenue of one year 
must be devoted to the wants of that year. Brauns v. Town of Peoria, 82 111. R., 11. 

(2) An authorized meeting of the commissioners would be such as is held at a 
time fixed by law, or in pursuance of any general rule or special order the commissioners as a 
board have previously made, or that which is held at the call of the president or any two of the 
commissioners according to Sec. 10, post. 

(3) For proceedings by the commissioners to lay out, alter, widen or vacate roada, see 
post, Sec. 30 and sections following. 

In laying out a road, the action of a majority of the commissioners thereon is suffi- 
cient to render their proceedings valid, when the statute provides that "they, or a majority of them, 
may proceed to act in the premises." Hall et al. v, The People ex rel., 57 111. R., 307. 

It is provided by Sections 35, 3(5 of this act, as will be seen, that in vacating, laying out, widening 
or altering roads,' a majority of the commissioners may act. 

In laying out and opening highways the commissioners of highways are merely the 
agents of their towns. Woodruff v. Tht 'J own of Glendule, '23 Minn. R.. 537. 

A town cannot, by vote, authorize or compel the commissioners of highways to 
lay out, alter or vacate a particular town way or public road; their duty being expressly pointed 
out by law, and they can only act in obedience to its provisions. Keen v. Utttson, 5 Pick. R., 492. 
For duty of commissioners in this regard, see post, Sec. 31. 

The survey and plat of a public road is evidence of its location, but is not conclusive; 
but like the field notes of the government surveys, parol evidence may be received to ahow that the 
road was actually located differently from the calls in the survey of the road. Hiner v. The People, 
34 111. R., 297. 

F»arol evidence is admissible to show the existence of a public road- Brown ▼. 



122 ROADS AND BRIDGES. [DIV. II, 

2. To cause such roads used as highways as have been laid 
out or dedicated to public use, but not sufficiently described, and 
such as have been used for twenty years, but not recorded, to be 
ascertained, described and entered of record in the town clerk's 
office. (1) 

3. To purchase, for use upon highways such necessary tools, 
implements and machinery as they may think proper. 

4. To take possession of and keep under shelter, when not in 
use, all scrapers, plows and other tools belonging to their towns 

Jefferson, 16 Iowa R., 339. As well as its location. Eyman v. The People, 1 Gilm. R., 4; Needy ▼. 
Brown, Id., 10. 

The inference from evidence tending to slow that a way over a man's land is a public road may 
be rebutted by evidence of non-user for more than twenty years. JJurgwyn v. Lockhart, 1 Wins. 
R., (N. C), No. 1,269. 

Where tlie public have ceased to travel a road, and have acquired another which 
accommodates public travel, an abandonment of the first road may be presumed. Grube v. Nich- 
ols, 36 111. R., 93. 

Where ground upon which a high-way was laid out, or which was dedicated for that 
purpose, has been in the open and exclusive adverse possession of the owner of the land for twenty 
years, and a complete non-user of the easement by the public during that time, an extinguishmeut 
will be presumed. City of Peoria v. Johnston, 56 111. R., 45. 

A road, to which the public can have no access hy a highway, cannot in the na- 
ture of things be public, and, at most, would serve only the purpose of private convenience. State 
v. Price, 27 Md. R., 449. 

It is an unsettled question in New York whether a road open at one end only, that is where 
but one end conneccs with a highway— technically termed a, cut de sac— is a public highway. 
Hickokr. Plattsburgh, 41 Barb. R. (N, Y.), 130. But held in Maryland, where commissioners had 
authority to lay out a road, if, in their opinion, it would conduce to the advantage and conveni- 
ence of the public, a road Jaid out by them would be a public road, even if it did not connect 
with another highway. State v. Price, 21 Md. R., 449. 

The Supreme Court of Illinois sustained a highway which the record showed to be a cul desac. 
Commissioner of Highways of Lyons v. The People ex ret., 38 111. R., 34T. 

In a later case the supreme court decided that a road laid out by commissioners, under 
the statute, is a public highway, even though one end of the same terminates against private 
land, with no outlet. The statute must control against any contrary doctrine of the common 
law. Sheaff v. 1 he People ex ret., 87 111. R , 189. 

The title of Ihe owner of lands hounding upon a high-way is presumed to extend 
to the centre of the way. Rice v. Worcester, 17 Gray R., (Mass.) 283. But this will be rebutted by 
a deed showing to the contrary. Smith v. Slocum, 11 Gray R., (Mass.), 280. 

The common law writ of certiorari is the proper mode of proceeding" where it is 
sought to question the jurisdiction of commissioners of highways, and regularity of their pro- 
ceedings in laying out and establishing a highway. Commissioners v. Harper, 38 111. R, 104. And 
it lies to bring up the record of proceedings in laying out a road by supervisors on appeal. Toiva 
of Wivfield v. Moffatt et al., 42 111. R., 47. 

(1) Form of Order of Commissioners of Highways for Ascertaining a Road 

Imperfectly Described or not Recorded, 
State of Illinois, ~\ 

County, f ss. Board of Commissioners of Highways. 

Town of- — J 

Whereas, a road leading from [northward to the road, [or 

as the case maybe], in said town of , and now used as a highway, 

was laid out by the commissioners of highways of said town, on the — — 
day of , A. D. 18 — , [or by authority of the County, or County Com- 
missioners' Courf, as the case may be,] but which is not sufficiently des- 
cribed [or, has been dedicated to public use; or, has been used for twenty 
years for such highway, but not recorded]. 

Now, therefore, we. the commissioners of highways for the said 

town of , do order that said road be ascertained, described and 

entered of record in the clerk's office of said town, according to a survey 



DIV. II.] COMMISSIONERS OF HIGHWAYS. 123 

wherever the same may be found, and not allow the same to go to waste, 
and not lend the same except to persons employed by them to work the 
roads by contract or otherwise. 

5. To cause to be erected and kept in repair at the forks or crossing 
place of the most important public roads, a post and guide board, with 
plain inscription thereon, in letters and figures, giving directions and 
distances to the most noted places to which such road may lead ; to pre- 
vent thistles, burdock, cockle-burs, mustard, yellow dock, Indian mal- 
low and gypsom weed from seeding, and to extirpate the same so far 
as practicable ; and to prevent all rank growth of vegetation in the public 
highway by causing the same to be cut and destroyed prior to the seed- 
ing of the same, and at the farthest prior to September 1st in each and 
every year; and the said commissioners may, at their discretion, adopt 
any suitable and convenient mode of supplying water in troughs con- 
veniently situated on the public highway for public use. 

6. It is hereby made unlawful, and the commissioners are required 
to prevent any one, at any time, from plowing in the public highways 
for any purpose, unless by the consent of at least two of the commis- 
sioners. (1) 

6a. Sidewalks in villages not incorporated. ] Be it enacted, 
etc. § 1. That highway commissioners are authorized to build side- 
walks in unincorporated villages out of any delinquent road tax belong- 
ing to the road district in which such village is located. [Act approved 
June 21, 1895.] 



which has been made under our direction, as follows [here insert the survey.] 
And we do further order that the line of said survey be the center of said road 

and that the same be of the width of feet. 

Given under our hands this day of , A. D. 

N. W., ) Commissioners 
O. S., }■ of 



fe, 



W. H., ) Highways, 

The act authorizing commissioners of high-ways to ascertain, describe and enter 
of record, roads used as public highways for twenty years, confers no authority upon them to 
adjudge what was originally intended in relation to the width or location of the road, any fur- 
ther than such intention is manifested by actual user, and they cannot increase the width of the 
road or change its location. If the commissioners in such cases encroach upon lands which do 
not belong to the highway as it had been actually opened and used, the owner thereof cannot 
take his remedy by appeal, as in other cases, but must seek it in some other form. The People v. 
Judges, etc., 24 Wend. JR., 491; Talmage v. Hunting, 29 N. Y. Rep. (2 Tiffany), 447; Bumpers v. Miller, 
4 Mich. R., 161. 

In determining the location of a road, the testimony of one who was both viewer and 
surveyor, and of all others most capable of testifying to the fact, should be received. Morrow 
t. Commonwealth, 4S Penn. State R. 205. 

Where commissioners of highways neglect to have any road designated, they may 
be required to proceed lor that purpose on petition of twelve land owners, under Section 37 of 
this act, see post. 

(1) Form of Consent to Plow upon the Highway. 
State of Illinois, ~| 

County, f ss. Board of Commissioners of Highways. 

Town of J 

Application having been made by A, B., for consent to plow upon the 



124 BO ADS Am> BKIDGES. [DIV. n. 

6. Drainage —Joining with adjoining land owners.] § 6. 

Whenever the commissioners are about to lay a tile drain along 
a public road, they shall have power to contract with the owners 
or occupants of adjoining lands to lay larger tile than would be 
necessary to drain the road, and to permit connection therewith 
by such contracting parties to drain their lands. (1) 

7. Willow hedge destroyed— Tree planting.] § 7. Where 
willow hedges, or a line of willow or cottonwood trees have been 
planted along the margin of the road, so as to render tiling im- 
practicable, the commissioners may contract with the owner for 
their destruction; and they shall be destroyed before tiling.(2) The 

'highway at [here describe the place with reasonable certainty] in said 
town, for the purpose of [here state the purpose] the undersigned, com- 
missioners of highways of said town of . by virtue of the authority 

in them vested by the statute in such case made and provided, hereby give 
consent to the said A. B. to plow upon the highway at the place described 
■aforesaid for paid purpose mentioned. 

Given under our hands this day of , 18—. 

C. D., 1 Commissioners 

r of 

E. F., J Highways. 

(1) Form for Contract to Lay Drain. 

This contract made and entered into this day of , A. D. 18 — , 

4by and between the commissioners of highways of the town of , 

parties of the first part, and G. H. of said town, owner of lands adjoining 
the road hereinafter mentioned, party of the second part, witnesseth: 

That, whereas, the said commissioners of highways are about to lay a 
tile drain along a public road, being the road [here describe the road with 
reasonable certainty,] and, whereas, it is desirable that a larger tile than 
would be necessary to drain said road should be laid. 

Now, therefore, it is hereby agreed, in consideration of Ihe mutual 
benefits arising therefrom, that the said commissioners may lay a larger 
tile than is necessary to drain said road, and may connect said tile with 
any drain or tile laid by said G. H. to drain his lands adjoining said road, 
and the said G. H., owner [or occupant] of said adjoining lands may have 
permission to connect his drain or tile with such tile to be laid by said 
commissioners, for the purpose of draining his lands. 

Witness the hands of the parties hereto the day and year first above 
written. 

A. B.,) Commissioners 
C D., \ of 

E F.J Highways. 
G. H. 

(2) Form of Contract to Destroy Willow Hedge. 

This contract made and entered into this day of , A. D. 18 — , 

by and between the commissioners of highways, of the town of , 

county of , State of Illinois, parties of the first part, and G. H., of 

the town of , county aforesaid, party of the second part, witnesseth: 

That, whereas, the said G. H. is the owner of land adjoining the public 
highway at [here describe place in question with reasonable certainty] 



DIY. H.] COMMISSIONERS OE HIGHWAYS. 125> 

planting of these trees hereafter on the margin of roads is hereby 
declared a public nuisance, unless the same are planted by the- 
consent of the commissioners.(l) 

8. Ditches and drains— Entering upon adjoining lands.] § 8. 
The commissioners of highways of the several towns are hereby 
authorized to enter upon any land adjacent to any highway in> 
their town for the purpose of opening any ditch, drain necessary 
sluice or water-course, whenever it shall be necessary to open a. 
water-course from any highway to the natural water-courses, and 
to dig, open and clean ditches upon said land for the purpose of 
carrying off the water from said highways, or to drain any slough 
or pond on said highway :(2) Provided, that unless the owner of 

in said town, and there is planted along the margin of said road upon the 

lands of the said G. H. a line of willow [or cotton wood] trees so as to 

render the tiling of said road impracticable. 
Now, therefore, this contract witnesseth, that for and in consideration. 

of , the said commissioners of highways may destroy said willow 

[or cottonwood] trees so standing on the land of said G. H. for the pur^ 

pose ot tiling said road. 
Witness the hands of the parties- hereto the day and year first above 

written. A. B., ) Commissioners 

C. D., \ of 

E.F.J Highways. 
G. H. 

(1) Form of Consent of Commissioners to Plant Trees* 
State of Illinois, ) 

County, \ ss. Board of Commissioners of Highways. 

Town of , J 

Application having been made by G. H. to plant willow [or cottonwood] 
trees on the margin of a certain road in said town known as [here de- 
scribe the road] between the following points, to-wit., [here state defi- 
nitely the place where trees are to be planted,] we, the commissioners of 
highways of said to^vn, by virtue of the authority vested in us by the 
statute in such case made and provided, hereby give consent to the said 
G. H. to plant willow [or cottonwood] trees on the margin of said road, 
at the place described aforesaid. 

Given under our hands this day of 18—. 

A. B.,) Commissioner* 
C. D., \ of 

E. F.,J Highways. 

(2) Form of Consent of Owner to Commissioners to Enter Upon Land to 

Open Ditch. 

The commissioners of highways of the town of , county of — « — , 

State of Illinois, having applied to the undersigned, A. B., therefor, he 
does hereby consent that said commissioners of highways may enter upon 
the following lands owned by him, [or for which he is agent,] to wit: 
[here describe the land with reasonable certainty,'] for the purpose of open- 
ing a ditch [or as the case may be] from the highway adjoining said land, 
for the purpose of carrying off the water from said highway, [or as the 
case may be.] 

Witness my hand and seal the day of , A. D. 18 — . 

A. B., [SBAIi.]. 



126 ROADS AND BRIDGES. D1V. II.) 

such land, or his agent, shall first consent to the cutting of such 
ditches, the commissioners shall apply to any justice of the peace 
in the county in which such road is situated, for a summons di- 
rected to any constable of said county, commanding him to sum- 
mon the said owner to appear before the said justice, at a time 
and place specified in such summons, not less than five nor more 
than fifteen days from the date thereof, for the purpose of having 
the damage assessed, which such owner may sustain by reason o* 
the digging or opening of such ditches or drains. The said sum- 
mons shall be under the hand of the said justice, and be served 
in the same manner as a summons is now served in civil actions 
before justices of the peace.(l) On the return of such summons, 
venire shall be issued for a jury of twelve persons,(2) who shall be 
summoned, and whose competency shall be determined as in 
other cases in the trial of civil actions before justices of the 

(1) Form of Summons to Owner of Land to have Damages Assessed. 

State of Illinois, \ 

County, / 8S * 

The People of the State of Illinois, to any constable of said county, greet- 
ing: 

You are hereby commanded to summon A. B. to appear before me, 
at , on the day of , 18—, at o'clock — M., for the pur- 
pose of then and there having the damage assessed which he, said A. B., 
may sustain by reason of the digging [or, opening] of a ditch [or, as the 

case may be] by the commissioners of highways of the town of , 

across the land of said A. B. at [state the place where as near as may be.] 

Given under my hand this day of , 18—. 

J. D., Justice of the Peace. 

The proceeding in this case may- be docketed and conducted like a suit In a civil action. 
The town may be named as plaintiff or actor, and the party summoned, as defendant. The justice 
can observe the like form of docket entry of the proceedings as in ordinary civil actions, varying 
the same when necessary to suit the occasion. The verdict of the jury should be entered on hi* 
docket in the proceeding as in other cases whereby the finding of the jury will become a matter of 
public record for justification of future acts of the commissioners in the premises. The number of 
the jury in this case will be twelve. For proceedings in trial of civil actions and complete form* 
of docket entries, see Halnes' Treatise, new ed., under appropriate heads. 

(2) Form of Venire to Summons Jury to Assess Damage*. 

State of Illinois, \ 

— County, / ss ' 

The People of the State of Illinois to any constable of said county, greet- 
ing: 

We command you to summon twelve lawful men of your county, who 

are not of kin to [name of land owners] to appear before me at , on 

the — - day of , 18 — , at o'clock, — M., to make a jury to assess 

the damages sustained by the land owners named aforesaid by reason of 
the digging or opening of ditches or drains on the land of the said [name 

of land owner] by the commissioners of highways of said town of , 

proceedings in which are now pending before me, and have you then 
and there the names of the jury and this writ. 

Witness my hand and seal this day of , A. D., 18—. 

A. B., Justice of the Peace, [seal.] 



DIY. H.] COMMISSIONERS OF HIGHWAYS. 127 

peace; which jury shall assess -such damages and render a ver- 
dict therefor, which shall be final and conclusive, of the amount 
of damages sustained by such person, and the amounts so awarded 
Bhall be paid, before the commissioners of highways shall be 
warranted and empowered to enter such lands, and dig, open and 
clean such drains, ditches and water-courses, as aforesaid, for the 
purposes contemplated in this act; and the commissioners of 
Highways are further authorized to use and employ the road and^ 
bridge money of their town for such purposes :(1) Provided, that in 
case the owner of said lands is a non-resident, service may be 
had by leaving a copy with the occupant or agent, or by notice, 
in the manner as prescribed in section 43 of this act. 

9. Grading— Sidewalks— Corner stones— Culverts.] § 9. In 
grading roads, whenever practicable, it shall be done so as to 
leave not less than one-tenth of the width of the road on each 
side for a sidewalk; and the space between these points shall be 
made a regular oval grade so that the entire space can be used 
for traveling purposes, and it shall be unlawful to ride or drive on 
such walk; and any person so offending shall be subject to a fine 
of one dollar for each offense. Grading shall be done before the 
first of September in each year. Corner stones marking sectional 
or other corners, shall not be disturbed, except to so grade the 
road that these, if in the line of travel shall not rise above the 
surface, and corner stakes shall be replaced by good and substan- 
tial stones. In grading pablic roads, if a ditch is made at the 
junction of roads, or at the entrance of gates or other openings 
of adjoining premises, the road authorities shall construct good 
and sufficient culverts, or other convenient crossings. 

10. Organization of Board— Officers— Meetings.] § 10. The 
commissioners of each town shall meet on the second Tuesday, 
after the annual town meeting in each year, at the town clerk's 
office, and shall organize as a board by electing one of their 

(1) Form of Verdict of Jury. 

State of Illinois, 1 In Justice Court, before A. B., 

County, j Justice of the Peace. 

Iu the matter of the assessment of damages consequent upon the dig- 
ging [or opening] of ditches [or drains], by the commissioners of high- 
ways of the town of , in said county, on the lands of C. D. 

We, the jury summoned to assess the damages in the above matter, 
having taken the oath required by law, and having heard the evidence 
offered as to the damages consequent upon the digging [or opening] of 
such ditches [or drains,] do assess the damages that we deem the claimants 
entitled to as follows: 

To O. P., the sum of dollars. 

Given under our hands this day of , A. D. 18—. 

(Signed by the Jurors.) 



128 KOADS AND BRIDGES. [DIY. II. 

number president, and one of their number treasurer, and the 
town clerk shall be ex officio clerk of said board, and shall keep a 
record of all the official acts and proceedings of the board in a 
well bound book, to be provided for that purpose, which record 
shall be signed by the president and clerk.(l) Said board shall 
hold regular meetings at such times as they shall designate, and 
special meetings, as occasion may require, at the call of the presi- 
dent, or any two of the commissioners; and no official business 
shall be transacted by the board except at a regular or special 
meeting. (2) If the president or town clerk be absent from a 
meeting, or refuse to perform his official duties, a president or 
clerk pro tempore shall be appointed from their own number. 

(1) The town clerk being clerk of the hoard of commissioners of highways 

■hould properly have the custody ot all record books and papers of tne board in relation to which 
he has any duties as their clerk. The law contemplates that everything of this kind will be found 
at the town clerk's office. 

The record of official acts ani proceedings which the law requires the clerk to make 
will include the proceedings of the commissioners in cases of their action on highway petitions. 
In short, the intention of the law is, as will be seen, that a record shall be made of all official 
acts and proceedings of the board in the record book of the commissioners. This w to be a 
separate book provided for that purpose. 

(2) The call of the president or two commissioners tor a special meeting should 

properly be in writing in the form of a notice. For the purpose of preserving a record of the 
facts which at some time may become material, the call or notice should be in duplicate, one 
copy being left with each commissioner notified and the other or duplicate should be de- 
posited with the town clerk, with an endorsement thereon showing the service of the other 
copy on the commissioner named therein. 
The following may be the form of suchcall or notice: 

Form of Notice by President or Two Commissioners of Call for Special 

Meeting. 
State of Illinois, "| 

County, Vss. Board of Commissioners of Highways. 

Town of . J 



To A. B., CommissioDer of Highways of said town of 

You are hereby notified that the undersigned [president or two com- 
missioners, as the case may be,] has [or have] called a special meeting of 

the commissioners of highways to be held on the day of , 1 S— , 

at the hour of o'clock — . M.,at [state place where] in said town of 

for the purpose of [state the object of the meeting.] 

Dated at this day of 18 — . 

[To be signed by the president or two commissioners as the case may be.] 

Form of Endorsement of Service of Notice of Meeting on Commissioner. 

The within notice was served on the within named A. B. by delivering 

a copy thereof to him [or as the case may be] on the day of 18 — . 

[To be signed by the person who serves the notice.] 

It wonld seem proper that the town cleric, being clerk of the board of commissioners, 
lhould be required to write out and serve notices of call of special meetings of the commis- 
sioners. 

Like other official bodies, commissioners of highways would have no authority to 

act individually and bind the town, unless expressly authorized to do so for some special purpose. 
They can, in general, perform no official acts except as a board at a meeting duly convened. 
Corns, of Randolph Co. v. Jones. Breese R., 237; Lynch v. Hartwell, 8 John. R., 422. When a meet- 
ing is desired, all the commissioners should have notice, whereupon, if a majority are present. 
they have power to act. Babcock v. Lamb, 1 Co wen R., 238 ; Commissioners v. Swan, 65 Barb. R., 216. 



DrY. II.] COMMISSIONED OF HIGHWAYS. 129 

The treasurer so chosen shall receive and have charge of all 
moneys raised in the town for the support and maintenance of 
roads and bridges, excepting such portions of the moneys as are 
hereinafter directed to be paid to the authorities of incorporated 
villages, towns and cities. He shall hold such moneys at all 
times subject to the order of the commissioners of highways, and 
shall pay them over upon their order, or a majority of said com- 
missioners, and not otherwise. (1) Before the person so chosen as 
treasurer shall be entitled to act as such, and within ten days 
after his appointment, he shall execute a good and sufficient bond 
in double the amount liable to come into his hands, with two or 
more landholders as sureties, in such amount and in such manner 
as the supervisor and town clerk shall determine, conditioned for 
the faithful discharge of his duties as such treasurer, and that he 
will honestly and faithfully account for and pay over, upon the 
order of the commissioners, all moneys that shall come into his 
hands by virtue of his said office; which bond shall be payable to 
the supervisor of the town, and his successor in office, and be 
approved by the supervisor and town clerk, and filed in the town 
clerk's office. Such treasurer shall receive such compensation for 
such services as treasurer as may be fixed by the commissioners, 
not to exceed two per cent, of the amount of money that comes 
into his hands, excepting such amount as he receives from his 
predecessor, or such amount as may be borrowed for the use of 
the town; and he shall keep an account in a book provided by 
the commissioners of all moneys received and all moneys paid 
out, showing in detail to whom and on what account the same is 
so paid. The town clerk shall, immediately upon the filing of 
said bond, notify the county treasurer thereof by a certificate 
under his hand and seal. (2) 

(1) Form of Order of Commissioners of Highways on Treasurer. 

$ 

State of Illinois, ] 

County, vs9. Board of Commissioners of Highways. 

Town of J 

To the treasurer of the commissioners of highways of said town : 

Pay to , or order, the sum of dollars for [state briefly 

on what account.] 

No. A. B., I Commissioners 

C. D., fof Highways. 

Mandamus is the proper remedy to enforce payment of orders regularly drawn 
by the highway commissioners on the township treasurer; the duty of the township authorities 
to make payment is just as imperative upon the presentation of such orders as it would be after 
a judgment against the township. McArthur v. Township of Duncan, 34 Mich R., 27. 

(2) Form of Bond of Treasurer of Commissioners of Highways. 
Know all men by these presents, that we, T. R., as principal, and R. R. 
and C. H.. as sureties, are firmly held and bound to W. D., supervisor of 





130 ROADS AND BRIDGES. [DIV. IL 

11« Poll Tax— Collection in money.] §11. At this meeting 
they shall make out a list of able bodied men in their town be- 
tween the ages of twenty-one and fifty years, and deliver the 
same to their treasurer on or before the first day of May in each 
year, and assess at such meeting against each person upon such 
list, a sum of not less than one, nor more than two dollars as a 
poll-tax for highway purposes, to be paid to such treasurer by 
the first Monday in June of each year : Provided, that paupers, 
idiots, lunatics, and such others as are exempt by law, shall not 
be compelled to pay a poll-tax for highway purposes : Provided, 
also, that this list shall not include persons within the limits of 

the town of , in the county of , Illinois, and to his successor 

in office, in the penal sum of [here insert double the amount liable to come 

into hands of treasurer] dollars, for which payment to be well and 

truly made, we do bind ourselves, our heirs, executors and administrators, 
jointly, severally and firmly, by these presents. 

The condition of this obligation is such that, whereas, the above boun- 

den T. R. was, on the day of , 18—, duly chosen treasurer of the 

board of commissioners of highways of the said town of , and is 

about to enter upon the performance of the duties of said office. Now, 
therefore, if the said T. R. shall faithfully discharge his duties as such 
treasurer, and shall honestly and faithfully account for, and pay over upon 
the order of the commissioners of highways of said town, all moneys that 
shall come to his hands by virtue of his office, then this obligation shall 
be void, otherwise to be in full force. 

Witness our hands and seals this day of , A. D. 18—. 

T. R., [SEAL.] 

Approved by us, A. B., Supervisor. R. R., [seal.] 

C. D., Town Clerk. C H., [seal.] 

This bond should be acknowledged as in case of other official bonds. 

The amount for which the bond of the treasurer is to be given is to be determined 
by the supervisor and town clerk, subject, however, to the requirement of the statute that it 
must be in double the amount liable to come into his hands as such treasurer. The bond should 
be approved by the supervisor and town clerk, and filed in the town clerk's office. 

A town supervisor cannot maintain an action on the bond of a commissioner of 
highways for neglect to deliver to his successor money which has been raised and paid over to 
him for the purpose of paying damages occasioned by the laying out of a highway where such 
highway has never been opened or worked, because the proceedings laying it out were void. 
Oailor v. Merrick, 42 Barb. R., 79. 

Form of Town Clerk's Notice of Filing Treasurer's Bond. 

State of Illinois, ") 

County, [» Town Clerk's Office. 

Town of J , 18— 

To the county treasurer of county : 

This is to certify that , who was appointed treasurer of the com- 
missioners of highways of the town of , at their meeting on 

the day of 18 — , has executed bond ,as such treasurer, which 

bond has been duly approved by the supervisor and town clerk of said 
town, and duly filed in the office of said town clerk, of all of which notice 
is hereby given. 

Given under the hand and seal of the town clerk of said town, this 

day of , 18—. 

A. B., Town Clerk, [seal.] 



OrV. IL] COMMISSIONERS OF H1GHWAY8. 131 

cities or incorporated villages.(l) They shall, within ten days 
after such list is delivered to their treasurer, cause written or 
printed notices to be given to each person so assessed, notifying 
him of the time when, and place where such tax must be paid, 
and if this poll tax shall not be paid by the first Monday of June 

(1) Form of List of Able Bodied Men Assessed a Poll- Tax. 

State of Illinois, ) 

County, > ss. Board of Commissioners of Highways. 

Town of , J 

The following is a list of able bodied men in the town of , between 

the ages of twenty-one and fifty years, made out by the commissioners of 

highways of said town, at their meeting held at , on the second 

Tuesday after the annual town meeting in said town, being on the 

day of April, 18—. At wnich meeting said commissioners assessed 

against each person upon such list the sum of dollars as a poll tax 

for highway purposes, as hereinafter shown, to be paid to the treasurer of 
the commissioners by the first Monday m June, 18 — . 



NAME OF PERSON ASSESSED. 


am't assessed. 


John Jackson, 
Jonathan Jenkins, 


i 1 


00 
00 



Witness our hands this day of , lb — . 

A. B.,) Commissioners 
C. D.,[ of 

E. F., J Highways 

It Is proper that the commissioners should make a formal order assessing the poll 
tax, in which case they should cause the order to be entered by their clerk in their record of pro- 
ceedings. The following may be the form of such order : 

Form of Order Assessing Poll Tax. 

It is ordered by the commissioners of highways of the town of , 

that there be and there is hereby assessed against each able bodied man 
in said town, between the age of twenty-one and fifty years, not exempt 
by law therefrom, whose name appears on the list of such persons made 

out at the meeting of said commissicners, this day of , 18 — , the 

sum of doilars, as a poll tax for highway purposes, to be paid to 

the treasurer of the commissioners of highways by the first day of June* 
18—. 

In the absence of some law to the contrary, it Is held that the township authorities maj 

control the road labor of the inhabitants of an incorporated city or village situated within the 
township; that an incorporated city or village is a part of the township within which it is situated, 
and is deemed as much a part thereof as the township is a part of tho county: that the town author- 
ities under township organization therefore have the right to impose and collect a poll iax oi &.1 
the inhabitants of the town, whether residing within Am em af the city or village. QKane v. 
Treat ctal.,2z 111. R.,557. 

But where complete jurisdiction is given to an incorporated city or village in regard to 
the improvement of streets therein, the general road law does not apply, and the township author- 
ities have no control in this respect. Fox v. City of Eockford, 38 HI. R., 451. 

It is competent for the legislature to provide for a poll tax and for compelling pay- 
ment thereat either in labor or money, and a penalty may be prescribed for non-payment of the 

assessment. Fox v. City of Bockford, ito ill. R., 451 

A poU tax can only toe assessed on inhabitants. Eerriman v. Stowert, 48 Maine R. 487. 

Trustees of schools, school directors or other school officers performing like dutiee 
are exempted from road labor. Rev. Stat., 981, § 72. This has reference to poll tax only. See Mc- 
Donald v. Madison County, 43 HI. R.. 23. Persons enrolled in the active militia are likewise ex- 
empt from payment of road labor and poll tax. Rev. Stat. 1880, p. 1020, g 16. 



132 ROADS AND BRIDGES. [jDIV. II. 

in such year, it shall be the duty of the commissioners, in the name of 
the town, to bring suit therefor against such persons, before some jus- 
tice of the peace having jurisdiction thereof. (1) Summons shall be 
issued and returned in the same manner as provided by law in other 
cases. If judgment is rendered against defendant, the court shall find 
in such judgment that the same is for poll-tax unpaid, and shall endorse 
the same on the execution, if one is issued. No property belonging to 
the defendant shall be exempt from levy to satisfy such execution. 
Provided, also, that on petition(2) of not less than twenty -five (25) legal 
voters of any town in this state in counties wheie township organization 
has been or may be hereafter adopted, asking to have the proposition to 
abolish the poll tax submitted to the legal voters of said town, and filed 
with the town clerk not less than fifteen (15) days before the regular 
town meeting of said board(3) then the town clerk shall state in the notice 
of the annual town meeting that the legal voters of such town may vote 
by ballot for or against the payment of a poll tax, and if a majority of 
all the ballots cast are against the payment of a poll tax, then that part 
of this section which provides for the levying of a poll tax shall nc 
longer be in force in such town. [As amended June 21, 1895.] 

12. - Collection on execution.] I 12. The constable to whom 
such execution shall be delivered shall forthwith collect the moneys 
therein mentioned. He shall pay the money so collected, wheu 

(1) Form of Notice for Payment of Poll Tax. 

Board of Commissioners of Highways, 
To : Township of Illinois. 

You are hereby notified that a poll tax having - been duly assessed against you 
in the sum of... T.. dollars, for highway purposes, by the highway commissioners 

of the town of ., at their meeting held on the day of April, , such 

tax must be paid on or by the day of June, , toE. F., the treasurer of said 

board of commissioners at [state the place where the payment is to be made. J 

Given under the hands of said commissioners of highways this day 

of , A. B., ) Commissioners 

C. D., \ of 

E. F., ) Highways. 

[The foregoing notice should be served by delivering a copy thereof to each 
person assessed. A duplicate copy should be retained by the commissioners, 
with an endorsement thereon showing the fact of service, which may be in the 
following form:] 

(2) Form of Petition to abolish Polltax. 

To , township clerk of township: 

The undersigned legal voters of said township respectfully ask that the 
proposition to abolish the Poll Tax in said township be submitted to the elec- 
torate thereof on the approaching annual township election, and that notice 
of the submission of said proposition be given in the notice of the annua] 
township meeting and election, as required by law. 
Dated, &c. [Must be signed by not less than 25 voters.] 

(2) The meaning of this awkwardly constructed language doubtless is " fifteen days before the 
annual township meeting and election." 

Form of Service of Notice to pay Poll Tax. 
The within notice was served by me on the within named O. P., by delivering 
a copy thereof to him on the day of ,. (Signed) R. S. 



DIV. H.] COMMISSIONERS OP HIGHWAYS. 133 

collected, to the justice of the peace who issued the execution, 
who is hereby required to pay the same to the treasurer of the 
road and bridge fund. 

1 3. Semi-annual meetings to fix tax rate—Limit of rate.] § 13. 

The commissioners shall also meet semi-annually on the same day 
and at the same place of meeting of the board of town audit- 
ors.^) At the meeting immediately preceeding the annual meet- 
ing of the county board, the commissioners shall determine what 
per cent, of tax shall be levied on the property of the town for 
road and bridge purposes and for the payment of any outstand- 
ing orders drawn by them on their treasurer, which levy shall not 
exceed sixty cents on each one hundred dollars. (2) 

14. Additional tax rate in case of emergency.] § 14. If, in 
the opinion of the commissioners, a greater levy is needed in 
view of some contingency, they may certify the same to the 
board of town auditors and the assessor, a majority of whom 
shall be a quorum, and with the consent of a majority of this 

(1) For time of meeting of town auditors, see Township Organization Act, Art. XIIL 

is. 

The annual meeting of the county board in counties under township organization, 

except in Cook county, is on the second Tuesday in September. 

A town has no authority to raise money to aid in the construction of a road which by law is to 
be made at the expense of the county; consequently a tax laid by the town for the purpose of col- 
lecting the money, is illegal and void. So held in Massachusetts. Pearson v. Goshen, 17 Pick. R. 
•96. 

A tax for constructing and repairing roads, bridges and causeways to the extent al- 
lowed by law, may be levied by direction of the electors at town meeting. See Township Org'n 
Act, Div. 1, Art. IV, g 3. 

(2) Form, of Determination of Commissioners of Highways of rate per cent. 
to be Levied for Road and Bridge Purposes. 

State of Illinois, ") 

County, /-ss. Board of Commissioner* of Highways. 

Town of , J 

The commissioners of highways of the town of , have and do at 

this their meeting immediately preceding the annual meeting of the 

county board- A. D. 18 — , determine that per cent, of tax shall be 

levied" on the property of said town for road and bridge purposes and for 
the payment "of any outstanding orders drawn by them on their treas- 
urer. 

Jonathan Jenkins, President, } Commissioners 

<■ of 

John Jones, Clerk, ) Highways. 

The determination of the commissioners of highways as to per eent. of tax to bo 

levied is a matter which should be entered in their record of proceedings, the same as any other 
official action of the commissioners. The law provides, as will be seen by Sec. 10, that a record 
Ehall be kept of all the official acts and proceedings of the board. The foregoing is suggested as a 
proper form for the determination of the commissioners in regard to per cent, of tax for purposes 
specified in the above section, to be entered by their clerk in their record of proceedings. Where 
entry of the determination is made in their record of proceedings, the foregoing form may be 
abridged by omitting the caption, it being presumed that all this will properly appear at the com- 
mencement of the record of proceedings in suitable manner. 

It is not necessary that the order of determination of per cent, of tax or any other single order 
•f this kind be signed separately when entered of record; all that the law contemplates is that the 
record of each meeting be signed at the conclusion by the president and clerk of the board. 



134 ROADS AND BRIDGES. [DIV. U. 

entire board given in writing, an additional levy may be made of 
any sum not exceeding forty cents on the one hundred dollars of 
the taxable property of the town.(l) 

15. Assessments to pay damages.! § 15. When damages 
have been agreed upon, allowed or awarded for laying out, widen- 
ing, altering or vacating roads or for ditching to drain roads, the 
amounts of such damages, not to exceed for anyone year, twenty 
cents on each one hundred dollars of the taxable property of the 
town, shall be included in the first succeeding tax levy, provided 
for in section thirteen of this act, and be in addition to the levy 
for road and bridge purposes; and when collected, shall consti- 
tute and be held by the treasurer of the commissioners as a sep- 
arate fund to be paid out to the parties entitled to receive the 
same. 

16. Levy certified to county clerk— Taxes in cities, towns and 
villages.] § 16. The commissioners, at said semi-annual meet- 
ing shall make a certificate of the rate per centum finally agreed 
upon, by virtue of sections thirteen and fourteen of this act, also 
the amount to liquidate road and ditch damages, and shall cause 

(l)Form of Certificate of Commissioners to Board of Town Auditors and 
Assessor for Greater Levy. 

State of Illinois, ] 

County, >es. Board of Commissioners of Highways. 

Town of J 

It is hereby certified to the board of town auditors and the assessor of 
the town of that it is the opinion of the commissioners of high- 
ways of said town a greater levy than sixty cents on each one hundred 
dollars is needed in said town in view of the contingency that \here state 

the contingency ,] not exceeding cents. 

Given under our hands this day of , A. D. 18—. 

A. B., ) Commissioner 
C. D., I of 

E.F.J Highways. 

Form of Consent to Additional Levy by Town Board. 

State of Illinois, 

County, 

Town of — 
It having been certified to us the board of town auditors and assessor of 

the town of by the commissioners of highways of said town that a 

greater levy than sixty cents on each one hundred dollars is needed in 
said town in view of the contingency, that [here state contingency as in 
the certificate'] consent is hereby given for an additional levy on the prop- 
erty of said town for the purpose aforesaid.not exceeding cents. 

Given under our hands this day of 18—. 

A. B.,1 Board 

C. D., I of 

E. F.,J Town Auditor*. 
€J. H.. Assessor. 



'•1 
'•I 1 



DIT. n.] COMMISSIONERS OF HIGHWAYS. 135 

such certificate to be delivered to the town clerk, to be kept by 
him on file for the inspection of the inhabitants of said town;(l) 
and the town clerk shall at once certify these two items of levy 
to the county clerk, to be by him extended as one tax upon the 
collector's book of said town, to be collected as other taxes, and 
when collected, shall be paid to the treasurer of the commis- 
sioners by the collector as fast as the same is collected, except 
such rate per cent, as shall be allowed for collecting the same :(2) 
Provided, that one -half the tax provided to be levied in section 
13 and 14 of this act, and collected for road and bridge purposes 
on the property lying within an incorporated village, town or city 
in which the streets and alleys are under the care of the corpora- 
tion shall be paid over to the treasurer of such village, town or 
city, to be appropriated to the improvement of roads, streets and 

(1) In determining the rate per centum for " roads and bridges" as provided by 
Bee. 13, the question arises as to what may properly be taken into account under the term 
"roads and bridges." This term in connection with that of "payment of outstanding orders 
drawn by the commissioners," would comprise any expense or outlay in regard to making and 
repairing roads and bridges; such as the purchase of material, tools and implements, as well as 
mere contracts for labor. In short, the law contemplates that it will include any and every 
expense or outlay deemed necessary in making and repairing roads and bridges. 

Form of Certificate of Bate Per Centum by Commissioners of Highways. 
State of Illinois, 



IlllDOlS, 1 

-County, Vss, Board of Commissioners of Highways. 



Town of- 

It is hereby certified by the commissioners of highways of the town 
of , that the rate per centum finally agreed upon by said commis- 
sioners at their semi-annual meeting held on the day of , 18—, 

by virtue of sections thirteen and fourteen of the act entitled, "An Act in 
regard to roads and bridges in counties under township organization, and 

to repeal an act and parts of acts therein named," is cents. 

And that the amount to liquidate road and ditch damages is dollars. 

Given under the hands of said commissioners of highways this dav 

of ,18-. 

A. B., ) Commissioner* 

C. D., r of 

E. ¥., J Highways. 

(2) The proper mode for the town clerk to pursue in certifying the items of levy 
for highway purposes to the county clerk would be to make a copy of the original certificate 
niea by the commissioners of highways, and add thereto his own certificate authenticating the 
same, which certificate of the town clerk may be in the following form : 

Form of Certificate by Town Clerk to Copy of Certificate of Items by Com- 
missioners of Highway 8. 
State of Illinois, ) 

County, f-ss. 

Town of J 

I, A. B., town clerk of the town of , in the county aforesaid, do 

hereby certify that the foregoing ior within] certificate is a true and cor- 
rect copy of the original thereof delivered by the commissioners of high- 
ways and kept by me, and now remaining on file in the office of the town 
clerk of said town. 

Given under my hand this day of , 18 — . 

A. B., Town Clerk. 



136 ROADS AND BRIDGES. [DIV. II. 

bridges, either within or without said village, town or city and 
within the township under the direction of the corporate author- 
ities of such village, town or city: Provided, further, that when 
any of said tax is expended beyond the limits of said village, 
town or city, it shall be with the consent of the road commis- 
sioners of the town.(l) 

Provided, further, that in all cities of thirty-five thousand (35,000) inhabit- 
ants or upwards, all of said tax required to be levied and collected under said 
sections thirteen and fourteen within the limits of such city, shall be paid 
over to the treasurer of such city for city purposes. 

17. Payment of damages.] § 17. Whenever damages have 
been allowed for roads or ditches, the commissioners may draw 
orders on their treasurer, payable only out of the tax to be levied 
for such roads or ditches, when the money shall be collected or 
received, to be given to persons dama£ed.(2) 

18. Keport of commissioners to town auditors.] § 18. At 
the semi-annual meeting immediately preceding the annual town 
meeting, the commissioners shall meet and report to the board of 
town auditors, in writing : 

1. The amount of poll-tax assessed, how much paid, and how 
much delinquent. 

2. The amount of road and bridge money received by the 
town, and a full and detailed statement as to how and where ex- 
pended, and the balance, if any, unexpended. 

(1) With quasi corporations, such as commississioners of highways, the rule 
obtains that their power to impose taxes or incur indebtedness will be strictly construed. Such 
corporations have no inherent power to levy taxes, and the grant of power must be plain and 
unmistakable. It is held that the commissioners of highways being powerless to borrow money* 
are equally so to contract indebtedness, except that they may have such work done and repairs 
made, and give orders on their treasurer to the extent and not beyond the amount of tax already 
actually levied by them. After this levy is made they may incur indebtedness in the discharge 
of their duties, before its collection. Tte commissioners of highways have no legal power to 
incur indebtedness for road and bridge purposes, in any fiscal year, beyond the amount of taxei 
already levied for that year. In other words, they can in no one year expend lawfully mora 
than the tax levied for that year. The road and bridge tax levied for any given year is legally 
applicable in payment for labor performed and expenditures made on the roads and bridges 
during that fiscal year, and cannot rightfully be applied to any other purpose, even to the pay- 
ment of prior indebtedness. Corns, of Highways v. Newell, 80 111. R. 537. 

There may be some douVit as to the proper construction of the law as now existing 
concerning the time when the fiscal year commences and ends, in the affairs of commissioners 
of highways. By Sec. 18 of this act the commissioners are required to make a complete report 
of matters under their charge to the board of town auditors ai their meeting in March. This 
would seem to imply, as the intention of the law, that the fiscal year would end at that time. 

(2) Form of Order of Commissioner* on Treasurer for Damage*. 

State of Illinois, ") 

County, [ss. Board of Commissioners of Highways. 

Town of J 

18— 

To the treasurer of the commissioners of highways of the town of 



Pay to A. B., or order, the sum of dollars for damages allowed 

him for [here state briefly what the damages are allowed for. ,] Payable 
out of the separate fund arising from the tax for such purposes. 

C. D.,\ Commissioners 
E. F., J of Highways. 



DIV. II.] BRIDGES. 137 

3. The amount raised for damages in laying out, altering, 
widening, or vacating roads, and right of way for ditches. 

4. The amount of liabilities incurred and not paid; and if 
such liabilities are undetermined, they shall be estimated. 

5. Any additional matter concerning the roads and bridges of 
the town they may think expedient and proper to make.(l) 

BRIDGES. 
Section. 

19. Bridges — county aid. 

20. Special elections to vote on borrowing money — bonds. 

21. Bridges over streams which divide towns and counties. 

22. Joint contract? between towns and counties. 

23. Refusal of either adjoining town to enter into contrast— special elec- 

tion. 

24. Repairs on bridges built by joint contract. 

2-5. Contracts for repairs or construction — notice of lettings. 
26. Contracts for on town lines — advertise for bids. 

(I) Form of Report of Commissioners of Highways to Board of Town 

Auditors. 

To the board of town auditors of the town of , in the county of 

and State of Illinois: 
The commissioners of highways of the town of do, in pursuance 

©f their duty imposed by law in such case made and provided, make the 

following report for the year ending on the day of , 18 — , 

to-wit : 

1st. The amount of poll-tax assessed at the meeting of the com- 
missioners of highways on the second Tuesday after the annual 
town meeting, A. D. 18—, is .' $ 500 

The amount of poll-tax paid, assessed as aforesaid, is 400 

The amount of delinquent poll-tax is $ 100 

2nd. The amount of road and bridge money received by the town 

is $3,000 

The expenditures of the road and bridge money received as afore- 
said is as follows: 
[Here set forth a full and detailed statement as to how and where 
expended .~\ 
The total amount expended being $2,500 

Leaving a balance thereof unexpended of. $ 500 

3rd. The amount raised for damages in laying out, altering, widen- 
ing or vacating roads, and right of way for ditches, is $1,000 

4th. The amount of liabilities incurred and not paid is $1,000 

[If the amount is undetermined, add after the word " and " afore- 
said the following \ " which being undetermined is estimated to be 

$ ."] 

5th. [Set J or th any additional matter concerning the roads and 
bridges of the town the commissioners may think expedient and 
vroper to make.] 

Ail of which is respectfully submitted. 

A. B., ) Commission em 

C. D., [ of 

E. F., J Highway*. 



138 ROADS AND BRIDGES. [DH\ U> 

27. Rejection of bids— contract and bond of successful bidders. 

28. Contracts payable on completion of work. 

29. Penalty for driving faster than a walk. 

19. Bridges— Method of county aid.] § 19. When it is neccessary to con- 
struct or repair any bridge over a stream or any approach or approaches 
thereto, by means of an embankment or trestlework, on a public road in any 
town, or on or near to or across a town line, in which work the town is wholly 
or in part responsible, and the cost of which will be more than twenty cents 
on the one hundred dollars on the latest assessment roll, and the levy of the 
road and bridge tax for two years last past in said town was in each year for 
the full amount of forty cents on each one hundred dollars allowed by law for 
the commissioners to raise, the major part of which is needed for the ordi- 
nary repair of roads and bridges, the commissioners may petition the county 
board for aid, and if the foregoing facts shall appear the county board shall 
appropriate from the county treasury a sum sufficient to meet one-half the 
expenses of the said bridge or other work, on condition that the town asking 
aid shall furnish the other half of the required amount: (1) Provided, that said 
commissioners shall, when it is determined by them that they will ask said 

(1) A bridge is a structure over a river, creeh, stream, ditch, ravine or other place, to 
facilitate the passage thereof, including by the term both arches and abutments. 1 Bout. Lair 
Diet. 222. 

A public bridge is one that forms part of tbe highway, and is common, according U& 
its character, as a foot, horse or carriage bridge, to the public generally, with or without toll. 1 
Bout. Law Diet. 222 ; Rex v. Inhabitants of Yorkshire, 2 East. R., 342. 

It is the duty of a town to build bridges over streams within its limits. This being 
so, the town will be responsible if they make such a structure as will obstruct the free navigation 
of the stream. Town of Harlem v. Emmert, 41 111. R., 320. But the right of a town to build a 
bridge over a river is co-extensive with the right to navigate it, and a bridge constructed on the 
most approved plan, at the proper place, and with sufficient channel between the piers, over any of 
our navigable waters, cannot be held to be a material obstruction to the navigation if it appear, 
that in ordinary times, with ordinary wind and water, the draw can be safely passed, and that no 
better structure could be erected for the purpose designed, with the amount of outlay demanded 
for such undertaking. There is no restriction in the ordinance of 1787, if it still be in force, on 
the power of the State to use the most approved artificial means for crossing navigable waters 
within the State; it only prohibits their obstruction, and the imposition of any tax or duty on 
their navigation. III. E. Packet Co. v. Peoria Bridge Association, 38 111. R., 468. 

It Is the duty of the commissioners to see that the repairs necessary on bridges are 
made, and if necessary labor is not performed through their neglect, or if the bridges are not kept 
in repair when they have funds in their hands applicable to such objects, they are liable for inju- 
ries that may result. Bartlett v. Crozier, 17 Johns. R., 451. But commissioners of highways are 
not bound to build or repair bridges when not in funds to defray the expenses. The People v. Com- 
missioners, etc., 7 Wend. R., 474. And an indictment against commissioners of highways for not 
repairing bridges is defective, unless it aver that the defendants had funds or other means to 
defray the expenses. The People v. Adsit, 2 Hill R., 619. 

At common law the counties and not towns -were liable to build and repair the neces- 
sary bridges, and the remedy for neglect was by indictment. Bartlttt v. Crazier, 17 Johns. R., 4s2. 
This burden is imposed on counties by almost universal usage and the exception throwing the bur- 
den on towns or particular corporations only the more clearly shows the general rule. Hoes v. 
Cunal Trustees, 14 111. R., 402; Dennisy. Maynard, 15 111. R., 477. 

But it seems that the inhabitants of a county are not liable at common law for not repairing 
bridges over canals. State v. County of Hudson, 1 Vroom R., (N. J.), 137. 

It is held in New Jersey that the inhabitants of a county are not indictable for not repairing 
bridges. State v. County of Hudson, 1 Vroom R., (N. J.), 137. 

Where a bridge is built by an individual over a natural stream, for his own ben- 

•fit, if the bridge be of public utility and is used by the public, they are bound to keep it in repair: 
but not so when the necessity for the bridge is created by the individual. Dygert t. Schenck, 23 
Wend. R,, 446. 

Where a petition Is presented by the commissioners of highways to the county 
board praying for aid in constructing or repairing a bridge, setting forth the facts in pursuance of 
(Section 19 of the road law, showing that the law has been complied with on the part of the town, 
it is the duty of the county board to appropriate a sum sufficient to meet one-half the expense* of 
tbe bridge. It seems that the question of the propriety of making the appropriation is not a mat- 
ter of discretion with the county board. It is the intention of the law that an obligation be cre- 
ated on the part of the county to make the appropriation when certain facts are shown to exist. 
See The People ex rel. v. Board of Supervisors of Iroquois Co., 100 DU. R., 640. 



DIV. II.] BRIDGES. 139 

county aid, as provided for in this section, and before any contract for work 
or material or any other expense may have been entered into, present their 
said petition to the county board, if it shall be in session, and if it shall not 
be in session to the chairman of the said county board, whereupon said county 
board, or the chairman thereof, as the case may be, shall appoint three 
members of said board, none of whom shall reside in the town asking aid, as 
aforesaid, to represent the county in said matter, and said supervisors when 
so appointed and notified shall meet said commissioners at time and place to 
be selected by said commissioners; and the commissioners and supervisors 
shall organize by electing one of their number chairman, and said commis- 
sioners and supervisors shall make all contracts in manner provided by law 
tor work, material and other expenses necessary for the construction or re- 
pairing of said bridge or approach or approaches thereto, a majority vote of 
said commissioners and three supervisors being necessary to make any con- 
tract or incur any expense: And, provided further, that all expenditures 
shall be made by said commissioners and supervisors and the county board 
shall not be liable for any part of said expenses or compelled to pay any part 
of its appropriation until all of the work has been fully completed and ac- 
cepted by said commissioners and supervisors and said facets properly certi- 
fied to by said supervisors and presented to said county board at a meeting 
held after the completion of said work, which certificate shall contain an 
itemized account of the expenditures: And, provided further, if the supervis- 
ors and commissioners, when organized as aforesaid, shall fail to agree or 
come to a conclusion on the matters before them, they shall, on account of a 
tie, summon a reputable citizen who is a householder of said county, but not 
a resident of the town asking aid, said summons to be served by any constable 

Form of Petition to County Board for an Appropriation to Aid in Build- 
ing or Repairing a Bridge. 

To the County Board of the County of , in the State of Illinois : 

The undersigned, commissioners of highways of the town of , in 

said county, would respectfully represent that a bridge {or, an approach or 

approaches to a bridge,] needs to be built [or, repaired,] over the 

river where the same is crossed by the highway leading from to 

in said town [or as the case may be, describing what is desired with 

reasonable certainty], in which said work the town of is wholly 

[or, in part] responsible; that the total cost of building said bridge [or, as 

the case may be,] will be dollars, which sum will be more than 

twenty cents on the one hundred dollars on the latest assessment roll of 
said town, and that the levy of the road and bridge tax for the two preceding 
years in said town was in each yea^ for the full amount of forty cents on each 
one hundred dollars, allowed by law for the commissioners to raise, the major 
part of which is needed for the ordinary repair of roads and bridges. 

Wherefore, the said commissioners of highways hereby petition you 
for aid, and for an appropriation from the county treasury of a sum suffi- 
cient to meet one-half the expenses of the said bridge [or other work.] 

Dated at , this day of , A. D. 18—. 

A. B., ) Commissioners 

CD., [ of 

E. F., J Highways. 

Form of Estimate and Affidavit by Commissioners of Highways, to be 
attached to Petition. 
State of Illinois, ~\ 

County, J-ss. Board of Commissioners of Highways. 

Town of J 



We, the undersigned, commissioners of highways of the town of , 

hereby state that we have made a careful estimate of the probable cost of 



140 ROADS AND BRIDGES. [dIV. II. 

of the county. And all questions in dispute and remaining unsettled shall be 
submitted to him, whose decision shall be final on all matters so submitted. 
The fees of the householder shall be the same as that of the supervisors, and 
the constable's fees shall be the same as constable fees for summoning a jury, 
and all of said fees of said members of said commission, and constable fees 
shall be paid out of said funds as part of the expenses. [Act of June 10, 1887, 
amended by act of June 17, 1891.] 

20. Special elections— Vote to borrow money— Bonds.] § 20. 

When the commissioners desire to expend on any bridge or other 
distinct and expensive work on the road a greater sum of money 
than is available to them by other means, the said commissioners 
may petition the supervisor of the town to call a special town 
election to vote on the proposition, which shall be clearly stated 
in the petition substantially as follows : " To borrow $ to con- 
struct or repair, [describe the bridge or other work]/' which said 
petition shall be signed by said commissioners in their official 
capacity and by at least twenty-five freeholders of such town; 
and thereupon such petition shall be filed in the office of the 
town clerk of such town.(l) Upon the filing of said petition, the 

the erection of a bridge across river, [or, as the case may be,"] and 

we do estimate that the probable cost of the same will be dollars. 

Witness our hands this day of , 18—. 

A. B. f ) Commissioners 

CD., V of 

E. F., J Highways. 

Form of Affidavit to Foregoing Estimate. 

State of Illinois, ] 

County, f ss. 

Town of ) 



A. B., C. D., and E. F., commissioners of highways of the town of , 

being each duly sworn, on oath say, that the construction of a bridge, 
mentioned in the estimate to which this affidavit is attached, across 

the river in said town [or as the case may be] is necessary, and that 

the same will not be made more expensive than is needed for the purpose 
desired. 

A. B., ) Commissioners 
C. D., I of 

E. F.,J Highways. 
Subscribed and sworn to before me, this) 

-day of , A. D. 18—. \ 

G. H., Justice of the Peace, j 

(1) Form of Petition to Supervisor for Special Town Election to Vote on 
the Question to Borrow Money. 

To A. B., Supervisor of the town of , in the county of , and 

State of Illinois : 
The undersigned commissioners of highways and twenty-five free- 
holders of said town would respectfully represent that the said commis- 
sioners desire to expend on the bridge at in said town [or other 

distinct and expensive work on the road] a greater sum of money than is 
available to them by other means, and that it will be neceesary to borrow 
money to [here state the work to be done], wherefore the undersigned 
hereby petition you to call a special town election to vote on the prop- 



DIV. II.] BRIDGES-. 1-AI 

supervisor shall order the town clerk, by an instrument in writing(l) 
to be signed by him, to post up in ten of the most public places in said 
town, notices of such special town election; which notice shall state the 
object, time and place of the election, the maximum sum to be borrowed, 
and the manner in which the voting is to be had, which shall invariably 
be by ballot, and shall be: 

"V ........... JYes'l "" 

: Proposition to borrow $ for [state purpose] ' J 



:No. I 



The special town election shall be held at the place or places of the last 
annual town election, by giving at least ten days' notice, and returns 
thereof be made in the same manner as other special town elections are 
now, or may hereafter be, provided by law; and if it shall appear that 
a majority of the legal voters voting at said election shall be in 
favor of said proposition, the supervisor and town clerk, acting 

osition " to borrow $ to construct or repair [describe the bridge or 

other work~\ " as above set forth. 

Dated at this day of , A. D. 18—. 

C. D., ) Commissioners 
E.F., \ of 

G. H., J Highways. 
[To be signed also by twenty-five freeholders.'] 

A freeholder is defined to lie one who owns an estate in fee simple, fee tail, or for life; the- 
possessor of a freehold. A freehold is an estate in real property of inheritance or for life, or the 
tenure by which it is held. The term freeholder, mentioned in the above section in its simplest 
signification, means one who is the owner of real estate. 

(1) Form of Instrument by Supervisor Ordering Town Clerk to Post Notices 



State of Illinois, 

County, )>S9. 

Town of — 



>} 



The commissioners of highways of said town of , having duly 

petitioned the supervisor of said town to call a special town election to vote 
on the proposition to borrow money to [here state as in the petition] as set 
forth in said petition, and which petition was riled in the office of the 

town clerk the day of , 18 — , it is therefore ordered by said 

supervisor that the town clerk post up in ten of the most public places in 
said town notices of such special town election, according to the law in 
such cases. 

Witness my hand, this day of , A. D. 18 — . 

A. B., Supervisor. 

For form of notice of special town meeting, see Township Org'n Act, Art. VI, f 8. 

The electors at town meeting are authorized to direct the raising of money by taxa- 
tion, for making and repairing roads and bridges. See Township Org'n Act, Art. IV, \ 3. 

"Where a special town meeting has been called to vote upon the question as to 
whether the town would borrow money to build a bridge, and the question was lost, there being 
a tie vote; a second special town meeting can be lawfully called, and held under that section. 
Nothing is found in the statute which forbids it. The power is not exhausted by having once 
been acted upon. It is a continuous one and may be exercised from time to time as circum- 
stances may require. Opinion Atiorney-General Edsall, Sept. 22, 1877. 

The authority to determine as to the necessity for building or repairing bridges 
over streams seems to rest with the commissioners of highways of the town under their general 
powers concerning roads and bridges. Their decision in this regard would seem to be final 
Bee Bingham v. Com'rs of Marion Co., 55 Ind. R. 113. 



142 KG ADS AND BRIDGES. DIV. IL] 

under the direction of the commissioners of said town, shall issue 
from time to time, as the work progresses, a sufficient amount in 
the aggregate of the bonds of said town for the purpose of build- 
ing such bridge, or other distinct and expensive work; said bonds 
to be of such denominations, bear such rate of interest, not ex- 
ceeding six per cent., upon such time, and be disposed of as the 
necessities and conveniences of said town officers require : Pro- 
vided, that said bonds shall not be sold or disposed of for less 
than their par value, and such town shall provide for the payment 
of such bonds and the interest thereon by appropriate taxation.(l) 

(1) Form of Bond for Borrowing Money to Build a Bridge. 

% United States of America. No. 

State of Illinois, County. 

Town of 

Know all men by these presents, that the town of , in the county 

and State aforesaid, is indebted to and will pay unto , or order, 

at , the sum of dollars on the day of , 18—, with 

interest thereon at the rate of per cent, per annum, payable annually 

on the day of in each year.* 

This bond is one of a series of [here state the whole number of bonds 
issued] numbered from one to , inclusive, and is issued by the super- 
visor and town clerk of the town aforesaid, acting under the direction of 
the commissioners of highways of said town, to borrow money to build a 
bridge at [here state the location of the bridge'] in said county, pursuant to 

a vote at a special town meeting in said town on the day of , 

18 — , duly held on petition of twenty-five freeholders of such town, said 
petition being duly filed in the office of the town clerk, of which meeting 
notice was duly given, in accordance with the statute in such case made 
and provided. 

In witness whereof the supervisor and town clerk of said town have 

hereunto set their hands and seals this day of , 18 — . 

A. B., Supervisor, [seal.] 
C. D., Town Clerk, [seal.] 

If coupon* are desired for tlie payment of Interest, add after the * in the above form 
the following: 

" According to the terms of interest coupons hereto attached." 

Form of Coupon to be Attached to Bond. 

$ No. 

The town of , in the county of and State of Illinois, will 

pay to , or order, at , on the day of , 18 — , the sum 

of dollars, being the amount of interest due on Bond No. , 

dated , issued by the supervisor and town clerk of said town in 

pursuance of a vote at a special town meeting duly called and held for the 
purpose of voting to borrow money to build a bridge. 

A. B., Supervisor. 
C. D., Town Clerk. 

A coupon is a certificate or obligation for interest due on a transferable bond for 
payment of money, printed at the bottom thereof. The payment of interest is expressed in this 
form as a matter of convenience to the parties ; the payment of the amount expressed, entitles 
Ihe obligor to a surrender oi the coupon thus paid. This dispenses with the more primitive 
mode of indorsement in writing of the fact of such payment. 



DIV. II.] BRIDGES. 143 

21. Bridges oyer streams which divide tow us and counties.] 

§ 21. Bridges over streams which divide towns or counties, and 
bridges over streams on roads on county or town lines, shall be 
built and repaired at the expense of such towns or counties: 
Provided, that for the building and maintaining of bridges over 
streams near county or town lines, in which both are interested, 
the expense of building and maintaining any such bridges shall 
be borne by both counties or towns in such portion as shall be 
just and equitable between said towns or counties, taking into 
consideration the taxable property in each, the location of the 
bridge and advantage of each, to be determined by the commis- 
sioners in making contracts for the same as provided for in sec- 
tion 22 of this act.(l) 

22. Joint contracts between towns and counties.] § 22. For 

the purpose of building or keeping in repair such bridge or 
bridges, it shall be lawful for the commissioners of such adjoin- 
ing towns, whether they be in the same or different counties, or 
county boards of such adjoining counties, to enter into joint con- 
tracts, and such contracts may be enforced in law or equity 
against such commissioners jointly, the same as if entered into 
by individuals, and such commissioners or county boards may be 
proceeded against, jointly, by any parties interested in such bridge 
or bridges, for any neglect of duty in reference to such bridge or 
bridges, or for any damage growing out of such neglect.(2) 

1) "VVne re a bridge over a stream dividing two towns is recognized and accepted as 

a public bridge by the proper officers of each town, each will be liable to one-h.ilf the expends 
oi' keeping the same in repair. Commissioners of Highways of Town of Dayton v. Cummissionera 
of Highways of Town of Rutland, 84 111. R., ^79. 

In the absence of any agreement between the commissioners of highways of 

two adjoining towns in regard to the erecting or repairing of a bridge on the town Jine, no action 
«an be maintained by one town against ihe other to recover for any portion of the money ex- 
pended on such bridge. Commissioners of Highways of Town of Dimmick v. Commissionert qf 
Highways of Town of Waltham, 100 111. R., 631. 

To compel an adjoining town to contribute to making or maintaining a bridge 

over a stream dividing the towns, a legal liability to such contribution must be shown. Mere 
use alone is not sufficient, where a bridge has been opened by private enterprise. Town of Ru>.- 
iund v. Town of Dayton, 60 111. R., W. 

(2) Form of Contract between Commissioners of Highways of Adjoining 
Towns for Building Bridge. 

This contract made and entered into this day of , A. D. 18—, 

by and between A. B., C D., and E. F., commissioners of highways of 

the town of , in the county of , and State of Illinois, of the 

one part, and G. H., I. J., and K. L., commissioners of highways of tbe 

town of , in said county, being adjoining towns, witnesseth, that 

said towns having become liable to build a bridge across river, a 

stream dividing such towns, said commissioners, in consideration of the 
premises and of the agreements hereinafter set forth, to be kept and per- 
formed by the respective parties, do contract and agree, that said bridge 

shall be built over said river where the road leading from to , 

crosses tbe same, on the line of the center of said road; that said bridge 
shall be of the following plan and materials, to wit: [Set forth briefly 



144 ROADS AND BRIDGES. DIY. IL] 

23. Refusal of either town to contract— Special election. 

§ 23. Whenever the commissioners of either of such adjoining 
towns shall refuse to enter into such joint contracts to build and 
maintain such bridge or bridges, the commissioners of the other 
town may call a special town meeting to vote upon the proposi- 
tion as to whether such town shall proceed to build and maintain 
such bridge or bridges at its own expense. (1) If such proposed 
bridge shall require a greater sum of money to complete it than 
is available to the commissioners by other means, they may also 
submit the proposition to such special town meeting to borrow 
money to build such bridge. The voting shall be by ballot, and 
if simply the question as to the building of the bridge is sub- 
mitted, if the voter desires to vote for building the bridge, his 
ballot shall state "to build bridge," and if he desires to vote 
against the proposition, his ballot shall state " against the propo- 
sition to build bridge." If the proposition to borrow money to 
build such bridge shall be included in the notice, the maximum 
amount to be borrowed shall be stated in the same, and the voter 
desiring to vote affirmatively shall state on his ballot "to build 
bridge and to borrow money to construct the same," and if he 
desires to vote negatively, his ballot shall state " against the prop- 
osition to build bridge and to borrow money to construct the 
same." Such special town meeting shall be called and held in 

the plan and materials, where such is made part of the contract, or plans 
may be annexed and referred to~\. That the building of said bridge shall 

be let by contract [or as the facts may be~\ within months from the 

date hereof, to the lowest bidder, who shall be required to complete the 

same within months from the date of accepting his bid. That the 

letting of said contract, the prosecution of the work, and acceptance 
thereof, shall be under the joint supervision and direction of said parties 
hereto, and their successors in office, and that the commissioners of each 
town will promptly furnish and pay over the due proportion of money 
that their said town may be liable for in building said bridge, as the pay- 
ments shall become due upon the contract for building thereof. 

In witness whereof, the said parties have hereunto set their hands and 
seals, the day and year first above written. 

In presence of •> A. B., [seal." 

J C. D., [SEAL. 

E. F., [SEAL. 



of 



Commissioners of Highways of the Town 

G. H., [SEAL. 
I. J., [SEAL. 
K. L., [SEAL/ 

Commissioners of Highways of the Town of 



The foregoing form can be varied or enlarged, to suit the circumstances of particu- 
lar cases. 

(1) The proceedings for calling and holding a special town meeting under Section 
23 may be the same as in Section 20 of this act, and the bonds to be issued may be in like form as 
fi»ei» under the latter section, varied if need be to suit the occasion. 



DIY. H.j BRIDGES. 145 

the same manner which is provided for special town meetings in 
section 20 of this act. If the proposition to build such bridge 
shall receive a majority of all the votes cast at such election, the 
commissioners shall then have the power to contract for the build- 
ing of such bridge and approaches thereto, the same as if the 
bridge was entirely located in such town, and shall have the pow- 
er to acquire by purchase, lease, or gift, any private bridge al- 
ready built, suited to their purpose, or any land upon which to 
build the approaches, or may use for the purpose of such ap- 
proaches any public highway, that may lead to the bank of the 
stream where said bridge is to be built, on either side of said 
stream, whether such highway be within the limits of said town 
or county or not. If the proposition to build such bridge and 
borrow money to build the same shall receive a majority of the 
votes cast at such special town meeting, the supervisor and town 
clerk, under the direction of the commissioners, shall issue from 
time to time, as the work progresses, a sufficient amount in the 
aggregate of the bonds of said town, for the purpose of building 
such bridge and the approaches thereto, or to purchase any pri- 
vate bridge already built, as the case may be, said bonds to be of 
such denomination, bear such rate of interest, not exceeding 
eight per cent., upon such time, and be disposed of as the neces- 
sities and conveniences of said commissioners may require. 
Such bonds shall not be sold for less than their par value, and 
such town shall provide for the payment of such bonds and in- 
terest by appropriate taxation. 

24. Repairs on bridges built by joint contract.] § 24. If the 

commissioners of either of such towns, or county boards of such 
counties, after reasonable notice in writing from the commission- 
ers of any other such town or county boards of such counties, 
shall neglect or refuse to build or repair any such bridge when 
any contract or agreement has been made in regard to the same, 
it shall be lawful for the commissioners or county board, so giv- 
ing notice to build or repair the same to recover, by suit, one- 
half (or such amount as shall have been agreed upon) of the ex- 
pense of so building or repairing such bridge, with costs of suit 
and interest from the time of the completion thereof, from the 
commissioners or county board so neglecting or refusing.(l) 

(1) Form of Notice to Commissioners of Adjoining Towns to Join in Per- 
forming Contract for Building or Repairing Bridge. 

To A. B., C. D., and E. F., Commissioners of Highways of the town of 

, county of : 

Ycu are hereby notified to fulfill, on your part, the contract entered into 
by you [or by your board], with the commissioners of highways of the 
town of , in said county, the day of- , A,D. 18—, for build- 

10 



146 ROADS AND BRIDGES. [DIV. H. 

25. Contracts for repairs, &c.,— Notice of lettings.] § 25. The 

commissioners are hereby authorized to contract for the construc- 
tion and repairing of roads and bridges, but when such contracts 
are for a sum exceeding $75.00, they shall give at least ten days 
notice of time and place of letting such contract by posting no- 
tices in at least ten public places in and contiguous to the 
town, describing the work and time of completion :(1) Pro- 

ing [or repairing] a bridge over river at a point where the road 

leading from to crosses said river, by [here set forth the per- 
formance required as stipulated in the contract], and that unless you shall 

so perform on your part within days from this date, the undersigned, 

said commissioners of highways, will proceed, as empowered by law, and 
complete said bridge, and will claim of you the due proportion of ex- 
pense thereof, chargeable to your town. 

Dated at , this day of , A. D. 18 — . 

E. F., ) Commissioners 

G. H., \ of 

I. J., J Highways. 

(1) Form of Notice of Public Letting of Contract for Building or Repair 

of Bridge. 

HIGHWAY NOTICE— PUBLIC LETTING OP CONTRACT. 

Notice is hereby given that proposals will be received by the 

commissioners of highways of the town of , county of , 

State of Illinois, on the day of , 18—, for building [or repairing] 

a bridge, at [state the place of location with reasonable certainty ,] that the 
same will be let by contract by public letting, to the lowest responsible 

bidder, at the hour of o'clock — M., at [state the place of letting.'] 

The amount and kind of work to be done is as follows : [state the same.] 

The work to be completed by the day of , A. D. 18 — . 

Dated at , this day of , A. D. 18—. 

N. P., ) Commissioners 

W. C, [ of 

J. W., J Highways. 

Form of Contract for Building a Bridge. 

This contract, made and entered into this day of , A. D. 18—, 

between A. B., D. C. and E. F., as commissioners of highways of the 

town of , in the county of , and State of Illinois, on the one 

part, and G. H., of , of the other part, witnesseth: 

That the said G. H., for the consideration hereinafter mentioned, does, 
for himself, his executors and administrators, promise and agree to and 
with the said commissioners of highways and their successors in office, 

that he, the said G. H., shall and will within the space of days next 

after the date hereof, furnish all materials for the bridge hereinafter men- 
tioned, and in a good, substantial and workmanlike manner, erect, build, 
finish and complete to the satisfaction of the said commissioners of high- 
ways, their successors in office, a bridge over the river on the high- 
way leading from — to , in said town, according to the follow- 
ing [or annexed] plans and specifications [giving same]. 

In consideration whereof the said commissioners of highways, in be- 
half of said town, promise and agree to and with the said G. H., his ex- 
ecutors, administrators and assigns, that the said town shall and will well 



DIT. n.] BRIDGES. 147 

vided, in case where bridges have been suddenly destroyed on 
any important highway, then such commissioners may privately 
contract for replacing such bridge to an amount not exceeding 
$150. 

26. Contracts for on town lines— Advertise for bids.] § 26. 

Contracts for constructing and repairing roads and bridges on 
town lines, or across streams on town lines, shall be let by the 
commissioners of the two towns, who shall meet and act as one 
body when taking action upon the letting of such contracts for 
the construction or repair of such roads and bridges, or accept- 
ance of the work. When such contracts are for the expenditure 
of a sum exceeding $100 they shall advertise for bids in the 
same manner as provided in the preceding section, except 

and truly, pay, or cause to be paid, unto the said G. H., or his assigns, 
the sum of dollars as soon as the said work is completed and ac- 
cepted by the commissioners. 
In witness whereof, the said parties have hereunto set their hands, 

this day of , A. D. 18—. 

A. B., ^ Commissioner* 
C. D., [ of 

E.F.J Highways. 

G. H, 

Form of Contract for Constructing or Repairing Road. 

This contract, made and entered into this day of , A. D-" 18 -"* 

between A. B., C. D. and E. F., as commissioners of highways of the 

town of , in the county of and State of Illinois, on the one 

part, and G. H., of — , of the other part, witnesseth : 

That the said G. H., for the consideration hereinafter mentioned, does, 
for himself, his executors and administrators, promise and agree to and 
with the said commissioners of highways and their successors in office, 

that he. the said G. H., shall and will within the space of days 

next after the date hereof, furnish all materials for the construction, [or 
repair] of the road hereinafter mentioned, and in a good, substantial and 
workmanlike manner construct, [or repair] finish and complete to the 
satisfaction of the said commissioners of highways, their successors in 
office, a certain road in said town leading from [here describe location of 
the road with reasonable certainty, giving the points between which such 
construction or repair is to be made,] in said town, according to the fol- 
lowing [or annexed] plans and specifications [giving same]. 

In consideration whereof the said commissioners of highways, in be- 
half of said town, promise and agree to and with the said G. H., his 
executors, administrators and assigns, that the said town shall and will 
well and truly, pay, or cause to be paid, unto the said G. H M or his assigns, 
the sum of dollars as soon as the said work is completed and ac- 
cepted by the commissioners. 

In witness whereof, the said parties have hereunto set their hands, 

this day of , A. D. 18—. 

A. B., ) Commissioners 
C. D., \ of 

E F.,J Highways. 

G. H, 



14:8 ROADS AND BRIDGES. [l)IV. II. 

that the notices shall be posted in and contiguous to the two 
fcowns.(l) 

2 7. Rejection of bids— Contract and bon d of successful bidder. ] 

§ 27. At such public letting, as provided for in the two preceding 
sections, the commissioners shall have the right to reject any and 
all bids if they deem it to the best interests of the town, and no 
contract shall be considered as let unless the contractor shall, 
Within ten days after the letting, enter into contract and file a 
bond, with two good and sufficient sureties, with the commis- 
sioners, in the penal sum of double the amount of the contract, 
payable to the commissioners of the town, upon failure to com- 
ply with the conditions of his or their contract. (2) 

28. Contracts payable on completion of work.] § 28. All 
contracts for the construction or repair of roads, or building or 
repairing bridges shall be made payable as soon as the work on 
said contract is completed and accepted by the commissioners. 

29. Penalties for driving faster than a walk.] § 29. The 
commissioners of highways may, when the [they] deem it dvisa- 
ble, [advisable,] put up and maintain in conspicuous places, at 
each end of any bridge, a notice with the following words in 
large characters : " Five dollars fine for riding or driving on this 

(1) The form of notice and contract nnder Sec. 26 -will be substantially the same 
•s the form of notice and contract given for proceeding under Sec. 25, varying the same to suit 
the occasion of two boards acting together. 

(2) Form of Bond of Contractor on Contract for Constructing or Repair- 
ing Roads and Bridges. 

Know all men by these presents, that we, A. B. and C. D., of the town 

of , in the county of — and State of Illinois, are held and firmly 

bound unto E. F., G. H. and J. K., the commissioners of highways of the 
town of , county of and State of Illinois, and to their suc- 
cessors in office, in the penal sum of [double the amount of the contract] 
dollars, for the payment of which well and truly to be made, we bind 
ourselves, our heirs, executors and administrators jointly, severally and 
firmly by these presents. 

Signed with our hands and sealed with our seals this day of , 

A. D. 18—. 

The condition of the above obligation is such that, whereas, the 

above bounden A. B. did on the day of , A. D. 18—-, enter 

into a contract with the commissioners of highways of said town to con- 
struct a bridge [or repair a bridge or construct or repair a road, as the 
case may be,] in said town at [here give definite description of the work to 
be performed under the contract]. 

Now, therefore, if the said A. B. shall well and truly perform or 
cause to be performed said contract, and each and every condition thereof 
according to the terms of the same and according to the true intent and 
meaning of the said contract, then this obligation to be void, otherwise 
•f full force and effect. 

A. B., [SEAIi.] 
C. D., [SEAL.] 



t)lV. II.] LAYING OUT ROADS. 149 

bridge faster than a walk." If any person shall ride or drive 
taster than a walk over any bridge upon which such notice has 
been placed, he shall forfeit to the town in which such bridge is 
located, five dollars for each offense. (1) 

LAYING OUT ROADS. 

Sectioh. 

30. Laying rut roads— width — opening— vacated. 

31. Altering, widening, vacating, and laying out roads — petition. 

32. Petition shall set forth description of road, etc. 

33. Hearing upon petition — notice of meeting. 

34. Adjourned meeting — announcement of decision filed with town clerk. 

35. Petition for vacation— hearing — decision filed with town clerk. 

36. Survey and plat of new roads or alterations. 

37. Re-survey of roads made upon petition. 

38. Locating new road on line of old one, shall not vacate old 

30. Width of road — when deemed vacated.] §30. All public roads estab- 
lished under this act shall be of the width of sixty feet: Trovided, that on petition 
for a new road, that if a majority of the land owners living along the line of said 
road sign a petition for a less width than sixty feet, then the highway commis- 
sioners may, when the interests of the public permit, authorize and lay out said 
road of a width not less than forty feet, and roads called public and private may 
be of the width in this act provided. All public roads laid out as herein provided 
shall be opened within two years from the laying out of same. If not opened 
w.thin the time specified, the same shall be deemed to be vacated.(2) [As amended 
June 7, 1897.1 



(1) Suit for recovery of all fines, tinder this act, may be brought before any justice of 
the peaceor police magistrate within the town, who have jurisdiction in such cases to the extentof 
their jurisdiction in other cases. See Sec. 74, post. For the law and forms and mode of proceeding 
in this regard, see Haines' Treaties, new ed., part 2, chap, ix., p. 738. 

(2) To avoid the vacation of a road under the prescribed limitation, it is neces- 
sary that it should be opened its entire length within the time prescribed. It. is not sufficient- to 
open only a part of it. Green et al v. Green, 34 111. R., 320; Wragg v. Penn Township, 94 111. R., 11. 
If any part is permitted to remain fenced up and the travel turned another way to avoid a field, 
this will vacate so much of the road as remains fenced up. Lyon v. Munson, 2 Co wen R., 426. Such 
non-user operates as an abandonment of the road; and whether the right of way has been obtained 
by release or by condemnation or payment of damages, the right of the owner to resume the ex- 
clusive use and occupancv of the land is complete and unqualified after such abandonment. Green 
et al. v. Green, 34 111. R., 320. 

If thf town authorities fall to procure the right of way until the day before the 

time expires, and it is apparent that the road can lot be opened within the time, a court of equity 
may restrain the town officers from opening a small portion of the road before the time expires. 
Green et ai, t. Green, 34 111. R., 320. 

Where the time, -within which a public road is required to be opened, expires 
pending litigation in respect to the establishing of the road, the time consumed in the litigation 
must not be estimated as a part of the time limited. Commissioners of Highways v. The People ex 
rel., 38 111 R., 347. 

The failure by the commissioners of highways to cause a public highway long in 

use, to be opened to its full statute width tor a period of thirty years, does not operate to extin- 
guish the rights of the public to the parcels not so opened and worked. Walker v. Caytoood, 37 N 
V. R., 51. 

Where, after the making of an order in 1839, laying out a road, the road was that year open hn 
fact, and during 1839 and succeeding years, was open, and partially worked throughout the route, 
and was travelled by the public more or less, every year from the time of its beinglaid out, opened 
and worked; held, that this was an opening of the road within the time requirea by the statute. 
Mm Me v. Whitney, 28 N. Y. R , (Tillany), 297. 

Where the order establishing a road was made August 19,1863, notice to remove fences wan 



1.50 ROADS AttD BRIDGES. [DIV. XX. 

31. Altering, widening, vacating aud laying out roads.] § 31. The com- 
missioners may alter, widen or vacate any road, or lay out any new road, in their re-, 
spective towns, when petitioned by any number of land owners, not less than twelve, 
or two-thirds of the land owners residing in such town within two miles of the road 
to be altered, widened, vacated or laid out: Provided, said commissioners may, when 
in their judgment the interests of the public will permit, also narrow or reduce the 
width of public roads to not less than forty feet when the same is petitioned for by a 
majority of land owners along the line of said road so far as the same shall extend 
within the township. When possible the land so vacated by reducing the width of the 
road shall be taken equally from both sides of the public highway. In cases of natural 
obstruction upon one side of the public highway or where the said road extends along 
the right of way of any railroad, river or canal, the commissioners are authorized to 
reduce the width of the road on one side only: Provided further, that said commis- 
sioners may also narrow or reduce the streets in town plats not incorporated, so as 
to leave the same not less than sixty feet in width, on petition and under like pro- 
ceedings as herein provided in case of laying out. altering, widening, narrowing or 
vacating roads. (1) [As amended June 7, 1897.] 

sprved February 1, 1868. The commissioners opened a passage way July 1, 1868, and allowed ban 
10 be put in temporarily to protect crops, on condition that no one should be hindered in pass 
ing through. Held, a sufficient opening to avoid vacation, where the limitation prescribed by tht 
statute was five years. Wiley v. Town of Brimfield, 59 111. R., 306. 

A road passing through unimproved and uninclosed lands is considered, in contem- 
plation of law, open when established. Ferris v. Ward, 4 Gilm. R., 499. 

Where a public highway has been abandoned for a great length of time, and 
another road has been opened and traveled by the public, and recognized by the public authorities 
having charge of the roads and repaired by them as such, an abandonment will be presumed. 
Qalbraith v. Littiech, 73 111. R., 209. 

It is a question whether a road may be abandoned by mere non-user, so as to relieve 
the town authorities from the duty of keeping it in repair. When a road is used to any extent, 
although it may be obstructed by movable bars across it, it will not be considered as abandoned. 
State v. Alstead, 18 N. Hamp. R., 59. But it has been held that a road may be lost by non-user. Fox 
r. Hart, 11 Ohio R., 416. 

Where the statute requires public roads to be laid out a specified width, when laid out 
under the statute they are deemed to be that width ; yet where they are claimed not as being laid 
out under the statute, but by reason of a user for twenty years or more, they may be less than four 
rods wide. Harlan v. Harriston, 6 Cowen R., 189. 

The inference from evidence tending to show that a way over a man's land is a public road may 
be rebutted by evidence of non-user for more than twenty years. Burgwyn v. Lockhart, 1 Wins. 
R., (N. C), No. 1,269. 

Where the public have ceased to travel a road, and have acquired another which 
accommodates public travel, an abandonment of the first road may be presumed. Qrvbev. Nichols, 
36 111. R,. 93. 

Where ground upon which a highway 'was laid out, or which was dedicated for 

that purpose, has been in the open and exclusive adverse possession of the owner of the land for 
twenty years, and a complete non-user of the easement by the public during that time, an extin- 
guishment will be presumed. City of Peoria v. Johnston, 56 111. R., 45. 

(1) In laying out a road, the action of a majority of the commissioners thereon is suf- 
ficient to render their proceedings valid, when the statute provides that " they, or a majority of 
them, may proceed to act in the premises." Halletal. v. The People exrel., 57 HI. R., 679. See 
Sees. 35, 36. 

In laying out and opening highways, the commissioners of highway! are merely the 

agents of their towns. Woodruff v. Town of Qlendale, 23 Minn. R., 537. 

A town cannot, by vote, authorize or compel the commissioners of highways to 

lay out, alter or vacate a particular town way or public road; their duty being expressly pointed 
out by law, and they can only act in obedience to its provisions. Keen v. Stetson, 5 Pick. R., 492. 
The duties of commissioners of highways ani mode of proceeding in this regard, as will be 
seen, are prescribed by this act. » 

The survey and plat of a public road is evidence of its location, but is not conclusive; 
but like the field notes of the government surveys, parol evidence may be received to show that 
the road was actually located differently from the calls in the survey of the road, Hiner v. Tht 
People, 84 111. R., 297. 

The common law writ of certiorari is the proper mode of proceeding where it it 
■ought to question the jurisdiction of commissioners of highways, and regularity of their pro- 
ceedings in laying out and establishing a highway. Commissioners v. Harper, 38 111. R., 104. And 
tt lies to bring up the record of proceedings in laying out a road by supervisors on appeal. Town 
of Winfleld v. Moffat et al., 42 111. R. 47. 

In narrowing streets under the proviso of Sec. 31, the commissioners should pro- 



*>IV. n.] LAYING CUT ROADS. 15l 

32*. What petition should contain.] §32. Said petitions shall 
set forth in writing a description of the road and what part thereof is 
to be altered, narrowed, widened or vacated, and, if for a new road, 
the names of the owners of lands, if known, and if not known it shall 
be so stated, over which the road is to pass, the points at or near which 
it is to commence, its general course, and the place at or near which it 
is to terminate. (1) [As amended June 7, 1897.] 

33. Hearing on petition— Notice of meeting.] § 33. When- 

ceed on petition the same as in case of laying out or vacating a road. The proceeding will not 
di ffer materially except in regard to the form of the order; this will be changed to suit the case of 
uarrowiug a street. 

(1) Form of Petition for the Alteration of a Road. 

To the Commissioners of Highways of the town of . in the county 

of , State of Illinois : 

The undersigned land owners [or two-thirds of the land owners] resi- 
dinir in such town within two miles of the road known as [describe the 
road] do hereby petition you to alter said road [or a portion of said road], 
as follows : Commencing at [state the place of commencing'] in said town 

of , and running the line of said road as follows : [state the manner 

in which the alteration of the line is desired] and your petitioners pray 
that vou will proceed and alter said road accordingly 

Dated at ,'this day of , 18—. 

Form of Petition for Widening a Road. 

To the Commissioners of Highways of tne town of, etc. 

The undersigned land owners [or two-thirds of the iand owners] resi- 
ding in such town within two miles of the road known &s [describe the 

road], the same being now feet in width, do hereby petition you to 

widen the same to the width of feet, and your petitioners pray that 

yon will proceed and widen said road accordingly. 

Dated at this day of , 18—. 

Form of Petition for Vacation of Road. 

To the Commissioners of Highways of th*e town of, etc. 

The undersigned land owners [or two-thirds of the land owners] resi- 
ding in such town within two miles of the road known as [describe the 
road], do hereby petition you to vacate said road [or so much of said road 
as lies in said town, or t^e following portion of said road, describing the 
portion,] and your petitioners pray that you will proceed and vacate said 
road accordingly. 

Dated at , this day of 18—. 

Form of Petition for New Road. 

To the Commissioners of Highways of the town of, etc. 

The undersigned laud owners [or two-thirds of the land owners] resi- 
ding in such town within two miles of the route hereinafter mentioned 
and described for a road, do hereby petition to you to lay out a new road 

of the width of feet, as follows : Commencing at [ or n ear, giving the 

point at or near which the road is desired to commence,] and running 
thence in a [northeasterly] direction, on the most eligible route to inter- 
sect [the road, at or near the house of S. L.] The names of the 

owners of lands over which the same is to pass are A B., C D. and K- 



*52 ROADS Aftt> BRIDGES. [dIT. It. 

ever the commissioners shall receive any such petition, they shall 
fix upon a time when and place where they will meet to examine the 
route of said road, and to hear reasons for or against the alter- 

F., and your petitioners pray that you will proceed to lay out said road 
and cause the same to be opened according to law. 
Dated at , this day of , 18—. 

Where the owners of lands over which the road Is to pass are not known, then that fact should 
be stated in the petition, which statement should be as follows: 

"The names of the owners of lands over which said road is to pass are 
not known to your petitioners." 
If a portion of the owners are known, and others not known, the statement can be as follows s 
"The names of the owners of lands over which said road is to pass, as 
far as known to your petitioners, are A. B., C. D., etc. The names of the 
owners of the following lands over which said road is to pass, to-wit: 
[here describe the land with reasonable certainty,] are unknown to your 
petitioners." 

The law makes no provision as to the mode of presentation of a road petition. 
The consideration of a petition requires the concurrence of the commissioners, or a majority of 
them; see Sec. 85 post. In other words, a petition can be considered only at a meeting of the 
commissioners. The law provides for two stated meetings of the commissioners of highways 
in each year, and further provides that said board shall hold regular meetings at such times as 
they shall designate, and special meetings as occasion may require, at the call of the president 
or any two of the commissioners, and that no official business shall be transacted by the board 
except at a regular or special meeting; see Sees. 10, 18, ante. The custom has been to present the 
petition to one of the commissioners, whereupon he notifies the other two, when a meeting is 
called to consider the petition. The commissioners should adhere to some rule to this effect, in 
the absence of any provision of law on the subject. The proper course, however, would be, as 
the law provides for frequent meetings of the board if necessary, to appear and present all peti- 
tions at some stated or special meeting of the board. 

It is a rule, that members of an official body composed of several persons, cannot act 
individually so as to bind the whole; official acts can be performed only at a meeting of the 
board, through a united action of the members. Bouton et aUy. Board of Supervisors, 84 111. R., 
884 ; Corn's of Randolph Co. v. Jones, Breese R., 237- 

On presentation of a petition to the commissioners of highways, they should first 
examine and see that it is regular upon its face. If so, their next duty is to ascertain whether 
the requirements of the law have been complied with. If not, they will be justified in refusing 
to act. The law requires: First, that the petition shall be signed by not less than twelve land 
owners, or two-thirds of the land owners residing in such town within two miles of the road 
proposed to be altered, widened, vacated, or laid out. Second, if it is to alter, widen, or vacate a 
road, the petition should set forth a description of the road which it proposes to change ; and, If 
a new road, it must set forth the names of the owners of the lands, if known, (and if not known, 
it must be so stated.) over which it is to pass, the point at or near which it is to commence, its 
general course, and the place at or near where it is to terminate. 

Upon the first point, the commissioners may satisfy themselves from actual knowledge, or upon 
proper inquiry. The second will appear from the petition itself. 

Whore an application is made to commissioners of highways for laying out a road* 

etc., they may refuse to act and should do so unless, in their opinion, the petition presented to 
them is regular and in accordance with the requirements of the law. If they err in their refusal 
to act, the remedy by mandamus is at hand. Warnick v. Orange Co., 18 Wend. R., 432. 

In a proceeding of this kind, where private rights are to be affected by the appro- 
priation of private property to public use, all the essential forms of the law must be rigidly ob- 
served, or the proceedings will not be sustained. New Orleans v. Sohr, 16 La. An. R., 393. 

The pro-visions of the statute relating to the taking of private land for a public 
highway are in the nature of conditions precedent, and must be complied with before the right 
of the property owner is disturbed. Hyslop v. Finch, 99 111. R., 171. 

The petitioners must be land owners of the* town where the proceedings are to be 
had. if they reside out of the town, although within two miles of the road, they are not lawful 
petitioners. Warne et al. v, Baker, 85 111 R., 382. 

It is no objection to a petition that more than the number of persons required 

by the statute have signed it, and where the requisite number thereof are qualified and reside 
within the town, it will be no objection because others whose names are upon the petition are 
not qualified within the provisions of the statute. See Carm<d v. Judges of Putnam Co., 7 Wend. 
R.,64. 



DiV. n.] Laying out roads. 153 

ing, widening, vacating or laying out the same; and they shall 
give at least ten days' notice of the time and place of such meet- 
ing by posting up notices in five of the most public places in the 

The common laur rule that a judge cannot sit in a cause in which he is interested, 
does not apply to highway commissioners. Such a commissioner, therefore, is not prohibited 
thereby from acting in the laying out of a highway, bv the fact that he is the owner of lands 
through which the projected highway runs. Foot v. Stiles, 57 N. Y. R., 399. 

The commissioners cannot proceed, except upon a petition in writing, by the 
requisite number of land owners, and an order made by them, laying out a road without such 
petition would be void. In case of contest, as to the legality of the road, the petition itself is not 
evidence that the signers are land owners. Harrington v. People, 6 Barb. R., 607; Williams v. 
Holmes, 2 Wis. R., 129. 

But where the owners of land release all damages, and no private rights are affected, the same 
strictness in regard to the petitioners would probably not be required. Marble v. Whitney, 28 N. 
Y. R., (1 Tiffany), 297. 

The general course of the road petitioned for is designated by the petitioners, the par- 
ticular route by the commissioners, and the latter may make such variations as they may think 
S roper, nrovided the departure is not of such a character as to induce the court to suppose that 
lese officers had whollv disregarded the preliminary proceedings of the application. Hallock 
v. Wooteey, 28 Wend, R.,*328; Neis v. Franzen, 18 Wis. R., 557. 

A high Tray must he laid out in conformity with the route described in the petition, 
otherwise the doings of the road commissioners will be without authority and invalid. Cole v. 
Town of Canaan,9 Foster R , 88. The distinctive marks of a highway as petitioned for, are the 
points of beginning and termination; the petition must be observed in this respect in layingout 
the road. A highway, laid from one terminus described in the petition about half way to the 
other, cannot be said to be the highway petitioned for. Ford v. Banbury, 44 N. Hamp. R., 888. 

The point of commencement named in the petition cannot be changed by the com- 
missioners. They can only grant or reject the prayer of the petition in this regard. Where the 
petition prayed for a new road to be laid out commencing at the southeast corner of a certain 
section, the commissioners established the commencement twenty-five links from the corner; it 
was held that this difference, though slight, avoided the entire proceedings establishing the road. 
Shi7ikle v. Magill, 58 HI. R. 422. The petition should describe the points of commencement and 
termination with certainty. Johns T. Marion Co., 4 Oregon R., 46. 

The bounds in a petition for a highway from a certain place "to a point near the 
dwelling house of B," was deemed sufficiently definite in fixing the point of termination. West- 
port v. County Commissioners, 9 Allen R., (Mass.) 203. 

The fact that the description of the alteration of a road, as given in the order de- 
claring it to be made, is not as definite as it should be, will not deprive the commissioners of the 
Jurisdiction previously obtained. Bailey v. McCain, 92 111. R., 277. 

Equity will not permit a road to be established through a township simply for the pur- 
pose of procuring a road for a part of the distance, for it would operate unjustly, if not as a fraud 
upon property holders. Oreen et al. v. Green, 84 111. R., 32. 

Where commissioners were appointed by an act of the legislature to lay out a 

road on the most direct and eligible route, commencing at or near a certain village, and the mad 
was laid out, commencing at a distance of sixty rods from the village, in a field where there was 
no road with which it could connect, and the route, instead of being the most direct and eligible 
was, as expressed by the court, strikingly injudicious; yet, notwithstanding these facts, the court 
awarded a peremptory mandamus to the commissioners of highways of the town to proceed 
forthwith to open and work the road as laid out by the State commissioners, it was held that 
•the court would not collaterally review the doings of the commissioners, and hold as void the 
final determination made by them, in the exercise of their discretion or judgment. That the 

f)roper way of taking advantage of an error of this kind would be by a certiorari or writ of error, 
f no other mode of appeal is given by statute. People v. Collins, 19 Wend. R., 56. 

A petition for a change in the location of certain parts of a road must set forth par- 
ticularly the parts proposed to be changed. Chartier's Road, 48 Penn. State R , 314. 

A petition to alter a town line road between two points specified, so as to "avoid that 
swampy land, and lay the said highway either northward or southward, that is, either through 
town 17 or town 10, at the discretion of the commissioners, on good and dry land," designates 
with sufficient certainty the alteration asked for, to give the commissioners jurisdiction to pro- 
ceed. Neis v. Franzen, 18 Wis. R., 537. 

A fair interpretation of the road law, warrants including a prayer for a new road and 

for vacating an old road in the same petition. Anderson v. Wood et at., 80 111. R., 15. 

The proceedings for laying out roads by commissioners of highways are town pro- 
ceedings; they are the act of the town. 23 Minn. R., 637; Woodruff v. The Town of QlendaU et 
mi., Sup. Ct. Minn., June 12, 1879. 



154 ROADS Afrb BRIDGES. DIV. II.] 

township, in the vicinity of the road to be widened; altered, va- 
cated or laid out.(l) 

M. Adjourned meeting— Decision filed with town clerk.] § 

34. The commissioners may, by public announcement, and by 

A town meeting lias no jurisdiction over the subject of abandoning highways. Brock 
v. Jlishen, 40 Wis. R., 674. 

The presentation to the commissioners of highways or a petition signed by the 
requisite number of persons qualified to sign the same, asking for the alteration of a highway, 
and the giving of notice of the time and place, when and where action on the petition will be 
taken, confers jurisdiction upon the commissioners, and their proceedings will not be void for 
irregularity. Bailey v. McCain, 92 111. R., 277. 

(1) Form of Notice of Commissioners of Time and Place Fixed for Ex' 
amination of Route, and Hearing Reasons for or Against Road. 

HIGHWAY NOTICE. 

A petition having been presented to the commissioners of highways of 

the town of , in the county of , to lay out a new road [or as 

the case may be] upon the following described route, to-wit: [here describe 
the road as set forth in the petition]', the said commissioners do hereby give 

notice that they have fixed upon the day of , 18 — , at the hour 

of o'clock — M., at [here state place of meeting], iu said town, as the 

time and place they will meet to examine the route of such road, and to 
hear reasons for or against the laying out of the same [or as the case may 
be] when and where all persons interested can be heard. 

Given under our hands, this day of , 18—. 

H. R.,1 Commissioners 

C. P., \ of 

M. H., ) Highways. 

Where the law requires notices to be posted in the most public places of the town, and 

the place of posting seems to be a public place, the court will presume, in the absence of any show- 
ing to the contrary, that the place of posting was one of the most public places in the town. Tieck 
t. Commissioners of Carver Co., 11 Minn. R., 292. 

Notice must he given of the meeting of the commissioners, and the want of it will 
vitiate their proceedings. This is essential to their jurisdiction. What is said to the contrary in 
Wells v. Hicks, 27 111. R., 345, is to be regarded as obiter dictum, and not binding as authority in the 
case. Commissioners v. Harper, 38 111. R., 104; FrizzeU et al. v. Rogers, 82 111. R., 1U9. 

The posting of thrse notices is a positive requirement of the statute, and must be 
complied with, and the recital in the order establishing the road, that the notices were posted, will 
be taken as evidence thereof. Shinkel et al. v. Magil et al., 58 111. R., 422. 

The notice of the time and place of the meeting of the commissioners to hear rea- 
sons for and against the road, is in the nature of a condition precedent to any action on their part 
and to the exercise of the power to appropriate the land of the citizen for the use of the road. 
Wood v. Commissioners of Highways, 62 111. R., 391. 

The requirements of the statute in regard to the petition, notices, and the survey 

of the road and order of the commissioners, must be complied with, and where none of these facta 
were shown, and the road had never been openrd or used, or regarded by road officers as a high- 
way, a mandamus to show cause why damages should not be allowed to a party through whose 
land a road was claimed to have been laid out, was refused. In such case the board of auditors 
have no authority to ? eview the proceedings in laying out the road, except to see that they were 
not void for want of jurisdiction. For this purpose, it seems, they may review the proceedings. 
People v. Town Board of Lagrange, 2 Mich. R., 187 ; Austin v. Allen, 6 Wis. R., 134; Babb v. Carver, 
7 Id., 124 ; Teick v. Commissioners of Carver Co., 11 Minn. R„ 292. 

Notice toy posting is for the benefit of persons affected by the location of the road, as 
owners of the land, and is termed constructive notice. It is held that notice, actual or construc- 
tive, to the owner of land, of proceedings to lay out a public way across it, is indispensable, whether 
the statute provides for such notice or not, and where the law requires personal service, notice of 
proceedings to a vendor who sells the land while the proceedings are pending, is not notice to the 
vendee. Curran v. Shuttock, 24 Cal. R., 427 ; Willis v. Smith, 14 N. Y. R., 17. 

The notice given toy the commissioners toefore laying out a highway must, with rea- 
tonable strictness, comply with the language of the statute, and be sufficient to inform all persona 



DIV. II.] LAYING OUT ROADS. 155 

the posting of a notice at the time and place named for the first 
meeting, adjourn the meeting from time to time, but not for a 
longer period than ten days in all; and shall, at the first or such 
adjourned meeting, within said ten days, decide and publicly an- 
nounce whether they will grant or refuse the prayer of the peti- 
tion, and shall endorse upon or annex to the petition a brief mem- 
orandum of such decision, to be signed by the commissioners.(l) 
Such decision shall be subject to revocation, in case the prayer of 
the petition is granted, in the manner hereinafter provided. In 
case the commissioners refuse to grant the prayer of the petition, 
they shall within five days thereafter, file the same so endorsed, or 
with such decision annexed thereto, in the office of the town clerk. 

Interested of the time and place of meeting. A notice that they will meet at a certain time and 
place, "to take into consideration the petition of D. C and others for laying out a highway," does 
not complv with the statute, and a road laid out under such a notice would not be legal. Babb v. 
Carver, 7 Wis. R., 124. 

The commissioners of highways it will be seen have authority at their first meeting to adjourn 
tbe meeting from time to time, but not for a longer period than ten days in all. This requirement 
It would seem is not merely directory but is peremptory, and the time limited is essential to the 
validity of the proceedings. A meeting after the time limited would not satisfy the requirements 
of the statute. See Com'rs. etc., v. Harper, 38 111. R., 104. 

In laying out highways, the commissioners as well as the supervisors before 

whom the matter is brought on appeal, exercise special and limited jurisdiction, and although it 
may be presumed till the contrary appear, that they have proceeded legally, yet their acts may be 
Impeached by showing that they have exceeded their powers. 3 Hill R , 458. 

Laying ont a high-way upon considerations other than the public good is held 

to be illegal. Thus, where a road was laid out by the commissioners, both because they thought 
the public good required it; and because G. and F. stated to them that if they would lay the road 
the petitioners would make it without any expense to the town ; both of which were taken into 
consideration by the commissioners deciding to lay the road; held, that a laying out upon such in- 
ducements would be clearly illegal. Gurnsey v. Edwards, 6 Foster R., 224. 

This act, however, permits inducements from individuals of money or labor, by contract in writ- 
ing. See post, I 51. 

The commissioners of highways have no jurisdiction in the matter of laying out a 
highway which is not to be wholly within their town, unless under some express provision of law, 
as when the road is to be on the town line, and when they act in conjunction with the commis- 
■iouers of the adjoining town. See case of Griffin's petition, 7 Foster R., 343. 

Laying out and opening of roads is not an exercise of judicial powers | yet the 

presumption ordinarily is that the antecedent proceedings have been regular; which presumption, 
however, is subject to be rebutted. Nealy v. Brown, 1 Gilm. R., lo. 

But it is held in New Hampshire that the laying out of highways partakes of the character of 
Judicial proceedings, and that such act is a judicial act. ' State v. Richmond, 6 Foster R., 232. 

(1) Form of Notice of Adjournment of Road Meetiny. 

HIGHWAY NOTICE. 

Public notice is hereby given that the meeting of the commissioners of 
highways of the town of , in the county of , and State of Illi- 
nois, to examine the route of a proposed public road and to hear reasons 
for or against laying out the same [or, as the case may be], according to 
tne petition of J. S., L. M. and others, as follows : [here describe the 
route] which meeting was to be held, pursuant to public notice, at [state 

peace], on the day of , A. £>. 18 — , at o'clock — M., is hereby 

adjourned until the day of — — , A. D. 18 — , at — o'clock — M., at 

[Hate the place], in said town. 

Dated this day of , A. D. 18—. 

R. L. f ) Commissioners 

E.S., \ of 

H. P., J Highways. 



156 ftOADS AND feRtiDGJES. DXT. It.) 

35. Petition for vacation— Hearing— Decision filed with town 
clerk.] § 35. If the petition is simply for the vacation oi a 
road, and the commissioners, or a majority of them shall, at such 
meeting, decide that the prayer of the petitioners should be 
granted, they shall order such road to be vacated; a copy of 
which order, together with the petition, shall be by them filed 
with the town clerk; such order to be so filed within five days 
after the date of such decision. (1) 

Form of Memorandum of Decision Granting or Refusing Prayer of 

Petition. 

We hereby grant [or refuse] the prayer of the within [or annexed] pe- 
tition, this day of , A. D. 18—. 

R. L., ) Commissioners 

E. S., [ of 

H. P., J Highways. 

The law contemplates that all the commissioners will he present when any action 

is had on a petition, but a majority may act, and decide all questions. If two only are present.aud 
act, all should have notice of the meeting. Bal>cork v. Lamb, 1 Cowen R., 238; Commissioners ▼. 
Swan 65 Barb. R., 210. it is not proper for two commissioners to hold a meeting for a special par- 
pose, unless all have notice of the meeting. Fdch v. Com'r of Kirtland, 22 Wend R., 132. 

Where the commissioners of highways met on the day named in the notice, and went upon and 
viewed the line of the proposed road, and on the same day announced publicly that they would 
not order the road to be established, which decision was not committed to writing, until two dayt 
afterwards, when it was filed in the office of the town clerk. Held, that this was a substantial com- 
pliance with the road law. Anderson v. Wood, et al., 80 111. R., 15. 

The fact that the commissioners, after they had lost, jurisdiction by their adjourn- 
ment, agreed to discontinue an old road and open another, provided certain persons, including the 
defendant owning the land over which the new road was to be laid out, would donate to the public 
the lands necessary therefor, and open the new road and put it in condition for public travel, 
without expense to the town, and that such persons fulfilled these conditions on their part, and 
that thereupon the old road across defendant's land was closed by him with the approval of the 
commissioners, does not estop the State or the town authorities from insisting that the old road 
continued to be a public highway. State v. Castle, Sup. Ct. Wis., 1878. 

(1) Form of Order of Commissioners Vacating a Road. 

State of Illinois, ] 

County, f ss. Board of Commissioners of Highways. 

Town of J . 

Whereas, on the day of , A. D. 18 — , the commissioners of 

highways of said town of , received a petition, in writing, of [here 

state the names of the petitioners'] praying for the vacating of a road 
therein and hereinafter described, said petitioners being landowners resi- 
ding in said town within two miles of said road [or as the case may be]; 

and diJ thereupon fix upon the day of , A. D. 18 — , as the time 

when and as the place where said commissioners of highways 

would meet to examine the route of said road, and hear reasons for or 
against tne vacating the same, and did give ten days' notice of the time 
and place of such meeting by posting up notices thereof in five of the 
most public places in said town, in the vicinjty of the said road; and 
having met at the time and place appointed, did personally examine the 
route of said road, to-wit: [here describe the road,] and having heard 
such reasons as were offered for and against the vacating of said road, 
and being of the opinion that such vacating was necessary and proper, 
and that the public interest would be promoted thereby, did decide thai 
the prayer of said petitioners should be granted. 

It is, therefore, hereby ordered and determined, and said commissioner! 



DIV. H.] LAYING OUT ROADS. 157 



36. Survey and plat of new roads or alterations.] § 36. If 

such petition is for the establishment of a new road, or the alter- 
ation or widening of an existing road, and the commissioners, or 
a majority of them, shall be of the opinion that the prayer of the 
petitioners should be granted, they shall cause a survey and plat 
of such road to be made by a competent surveyor, who shall 
report such survey and plat to said commissioners, giving the 
courses and distances, and specifying the land over which said 
road is to pass; in which they may make such changes between 
the termini of the road described in the petition as the con- 
venience and interest of the public, in their judgment, may 
require. (1) 

do hereby order and determine, that said road be vacated and discon- 
tinued. 
In witness whereof, the said commissioners have hereunto set theii 

hands, this day of , A. D. 18—. 

S. H., ) Commissioners 

A. T., \ of 

E. B.J Highways. 

Where a highway is vacated conditionally', under a statute permitting the same' 
It is not re-established by the suspension of the conditional vacation. Cooper v. Detroit, 42 Mich. 
R.,584. 

(1) Form of Surveyor's Report of Survey of Road. 

To the Commissioners of Highways of the town of , in the county 

of : 

The undersigned surveyor having been employed by you, said commis- 
■i oners, to make a survey of a road beginning, etc., [set forth the road as 
asked Jor in the petition,] do report that the following . is a correct sur- 
vey thereof, as made by me under your directions, to wit: [here set forth 
the survey, the course, distance, etc., as required bylaw,'] and that here- 
with is a correct plat of said road, according to said survey. 

Dated this day of , A. D. 18—. G. R., Surveyor. 

Form of Surveyor's Report of Survey of Alteration of Road. 

To the Commissioners of Highways of the town of — — , in the county 
of : 

The undersigned surveyor having been employed by you, said commis- 
■ioners, to make a survey of the alteration of a road beginning, etc., [here 
set forth the road and alteration as asked for in the petition,] do report 
that the following is a correct survey thereof as made by me under your 
direction, showing the line of alteration made, to-wit: [here set forth the 
survey of the line of alteration, the corners, distances, etc., as required by 
law, noting briefly the points in the old road from which the alteration is 
made,] and that herewith is a correct plat of said alteration, according to 
said survey, showing as well said alteration as the route of the old road. 

Dated this day of , A. D. 18—. , Q. R., Surveyor. 

In the alteration of a road It is proper that the plat should show the location of 
the old road as well as the line oi the alteration. In some States this rule is imperative. Statt 
v. Lippencott, 1 Dutch. R., (N.J.) 43*. 

The mere survey and platting of a road bjr a surveyor under the direction of high- 
way commissioners, does not have the effect to establish it as a highway; such a proceeding 
leaves the proof of the existence of the road precisely as it was before. It has, however, the 



158 ROADS AND BRIDGES. ['DIV. II 



37. Re-survey f roads— Petition.] § 37. Upon the petition 
of twelve land owners residing in the town where the road is 
situated, it shall be the duty of the commissioners, within a 
reasonable time, to employ a competent surveyor and have any 
road designated in such petition in their several towns, re-sur- 
veyed and plats thereof made, which plats and surveys shall be 
by them filed for record in the office of the town clerk : Pro- 
vided, that this section shall not apply where the same has been 
already done, unless the exact location of such road is uncer- 
tain.^) 

38. Locating new road on line of old not to vacate, unless.] 

§ 38. The establishment of a new road on the route of a road 
already established according to law, shall not vacate the road 
previously established, unless such vacation is prayed for in the 
petition, and so declared in the order establishing a new road. 

effect to stop the public from claiming that the road was upon a different line from the survey 
Gentleman v. Soule, 82 111. B,., 272. 

It is not essential to the validity of an order of commissioners of highways, or of 
the three supervisors who may act on an appeal from such commissioners, establishing a public 
highway, that the surveyor's plat, which the law requires shall appear, from such order, to hav« 
been signed by the surveyor. Tower et al. v. PUstiek, 55 111. R., 15. 

An unreasonable delay by the commissioners in causing a survey of a road to be 
made, and in depositing their order with the town clerk, will deprive them of jurisdiction. 
Where the delay was fourteen months, held, to be unreasonable and deprived them of jurisdiction 
to establish the road. Commissioners of Lavmdale v. Barry, 66 111. R., 496. 

In laying out a road, where a proper survey and plat of a proposed road have been 
made, and the proceeding to establish the road falls through, owing to some informality, such 
prior survey may be used in new proceedings to establish a road upon the same route. Hankint 
v. Galloway, 88 111. R. t 155. 

(1) Form of Petition of Twelve Land Owners for Re-survey of Road. 

To the Commissioners of Highways of the town of , county of 1 

State of Illinois : 

We, the undersigned landowners, residing in the town aforesaid, where 
the following described road is situated, do petition that within a reason- 
able time a competent surveyor be employed, and that the following road 
be re-surveyed, and a plat thereof made and filed for record in the town 
clerk's office, according to the statute in such cases, to-wit: [here describe 
the road, or roads.] 

Dated this day of , A. D. 18—. 

[To be signed by twelve land owners.] 

Form of Order of Commissioners of Highways for Re-survey and Plat 

of Road. 
State of Illinois, ) 

County, \ ss. Board of Commissioners of Highways. 

Town of— J 

Whereas, on the day of , A. D. 18 — , the commissioners of 

highways of said town of received a petition in writing of [here 

state the names of the petitioners'] praying for a re-survey and plat of a 
road as therein designated and hereinafter described, said petitioners 
being land owners residing in the town where said road is situated. And 
said commissioners having employed a competent surveyor for that pur- 
pose, did on the day of — , 18 — , proceed and have the road desig- 



UI7. II.] DAMAGES — ASSESSMENT. 159 



DAMAGES — ASSESSMENT. 

Section. 

89. Commissioners shall ascertain damages before locating — appeals. 

40. Damages by agreement — release. 

41. Damages assessed by jury — service. 

42. Service upon minors and defective persons. 

43. Service upon non-resident or unknown owners by notices. 

44. Venire for jury — one-half residents of town assessed — change of 

venue. 

45. Conduct of trial before justice. 

46. Title of suit — evidence — visit proposed location — benefits. 

47. Final meeting of commissioners before locating — notice. 

48. Revocation of damages assessed — new trials. 

49. Order locating survey, etc., filed with and recorded by town clerk. 

50. Location of roads where claims for damages have been released or 

agreed upon. 

51. Inducements by donations for locating roads authorized. 

52. Records of town clerk evidence of fact. 

53. Removal of fences — notice— removal by commissioners — expenses. 

39. Commissioners to ascertain damages— Appeals.] § 39. 

They shall also, before they order any road to be established, al- 
tered, widened or vacated, ascertain, as hereinafter provided, the 
aggregate amount of damages which the owner or owners of land 
over which the road is to pass shall be entitled to, by reason of 
the location, alteration or vacation of such road. Provided, hoio- 
ever, that in case an appeal is taken from the assessment of dam- 
ages before the justice of the peace, the commissioners may, in 
their discretion, make an order laying out, widening, altering or 
vacating such road, either before or after such appeal is deter- 
mined, in the manner hereinafter provided. 

40. Damages by agreement— Releases.] § 40. The damages 
sustained by the owner or owners of the land, by reason of the 
establishment, alteration, widening or vacation of any road, may 
be agreed upon by the owners of such lands, if competent to con- 
tract, and the commissioners, or they may be released by such 
owners, in which case the agreement or release shall be in writ- 
ing, and shall be filed and recorded with the copy of the order 
establishing, altering, widening or vacating such road, in the town 
clerk's office, and shall be a perpetual bar against such owners, 

nated in said petition re-surveyed and a plat thereof made, which plat is 

hereunto annexed, and which survey is as follows, to-wit: here set forth 

the survey, giving points, courses and distances as reported by the surveyor.] 

In witness whereof, the said commissioners have hereunto set their 

hands this day of , A. D. 18—. 

A. B., ) Commissioners 
C. D., [ of 

E. F., J Highways. 

For general power of the commissioner* of highways to cause roads to oe re- stir 
▼eyed, ste ante, Sea. 5, p. lt2. 



160 EOADS AND B1UDGES. [DIV. II. 

their grantees and assigns, for all further claims for such dama- 
ges.(l) 

41. Damages assessed by jury— Services.] § 41. In case such 
damages are not released or agreed upon as in the preceding sec- 

(1) Form of Agreement as to Damages in Laying Out Road. 

Whereas, a road was duly laid out on the day of , A. D. 18 — , 

by the commissioners of highways of the town of , in the county 

of , on the petition of the requisite number of land owners, resid- 
ing in said town within two miles of said road, [or as the case may be,} 
as follows: commencing, etc., [insert description of the road as in the 
order,] which road passes through the land of P. F., being known and 
described as follows: [here describe the land with reasonable certainty.] 
Now, therefore, it is hereby agreed between the said commissioners and 
the said P. F., that the damages sustained by the said P. F., by reason of 
the laying out and opening said road upon his land, hereinbefore des- 
cribed, be liquidated and agreed upon at dollars. 

In witness whereof, the said commissioners and the said P. F., have 
hereunto subscribed their names and the said P. F. has affixed his seal 

the day of , A. D. 18—. 

N. W., 1 Commissioners 
O. S., \ of 

W. H., J Highways. 
P. F., [seal.] Land Owner. 

Form of Release of Damages by Owner of Land. 

Whereas, a road having been duly laid out on the day of , A.D' 

18 — , by the commissioners of highways of the town of , in the 

county of , on the petition of the requisite number of land owners, 

residing in said town within two miles of said road, [or as the case 
may be,] as follows : [insert description of the route as set forth in the 
order laying it out,] which road passes through certain lands owned by 
me, being known as follows : [here insert description of lands.] Now, 
therefore, know all men by these presents, that I, A. G., for and in con- 
sideration of dollars received', do hereby release all claims to dama- 
ges sustained by me by reason of laying out and opening said road 
through my said lands above described. 

In witness whereof, I have hereunto set my hand and seal, this day 

of , A. D. 18—. 

A. U. [SEAL.] 

The acceptance of damages by the owner of land taken for a highway operate* 
as a waiver of whatever errors may have existed in the proceedings taken to lay out the road, and 
he is thereby estopped from calling in question the legality of such proceedings. Hartshorn r. 
Patroff, 89 111. R., 509. 

In mandamus to compel the commissioners of highways to pay the damages 
agreed upon between the owner and the supervisors, on an appeal growing out of the laying out 
of a road, if the petition fails to show that the commissioners had taken possession of the road, or 
recognized it as a legally established highway, or that the order for the road had not been revoked, 
It is fatally defective. Foos v. Coirirs oj Highways, 88 111. R., 141. 

"Where commission* rs of high-ways are unable to agree -with the owner of land 
ever which a highway is sought to be laid out, as to the damage to be paid him, they have no 
authority to submit the question of such damages to arbitration, and thus bind their town. Mann 
et al. v. Richardson, 66 111. K, 481. The law points out the method of proceeding in such cases. 
See g 41." 

Concerning the talcing of private property for public nse, the Constitution of Illi- 
nois, Art. 2, Sec. 13, declares that "Private property shall not be taken or damaged for public use, 
without just compensation." Although the property way uofc be actually taken, yet if it if dam- 



Drv. il] damages — assessment. 161 

tion specified, the commissioners shall, within ten days from the 
date of the meeting at which it was decided to grant the prayer 
of the petition, make a certificate that they are about to estab- 
lish, widen, vacate or alter a public road, describing such road, 



z 



ed by the laying out and construction of the road the constitution requires that compensation 
should be made. In common speech, the compensation awarded for the property taken is called 
the damages. The public is excluded from opening or using a road until the damages are assessed 
or agreed upon, or released in writing. Norton v. Studley, 17 111. E., 556. But in a later case 
it is held that the commissioners cannot lawfully proceed to open a road until the damages 
assessed to the owners of the lands taken have either been released, or they have been paid their 
damages, or that it be shown that there is money under the control of the commissioners with 
which to tender or pay the damages assessed. Hall et al. v. The People ex rel., etc., 57 111. R , 307. 
There can be no entrance upon or possession of land for public use, until the compensation for 
land damaged, and land taken is paid. The People v. McRoberts, 62 111. R., 38. A person's land can- 
not be taken for a highway until compensation, ascertained by a jury as prescribed by statute, ia 
paid to him. Hyslop v. Finch, 99 HI. R., 71. 

The compensation to be paid for taking property for public use must be pecuniary 
in its character becausa it is in the nature of a compulsory purchase. Weckler v. City of Chicago, 
•1 111. R., 142. 

Tlie full -value of land taken for a public highway must be paid in money, alone 

disregarding all benefits and advantages that may result to that portion of the owner's land not 
taken, by reason of the establishing of the road; and it is not in the power of the legislature to 
provide otherwise. Carpenter v. Jennings et al., 77 111. R., 250. 

In proceedings to condemn land for a public highway, the owner is entitled to be 
paid in money for the full value of the land actually taken, and he cannot be paid therefor in 
benefits to result from the laying out of the highway. As to damages, he may be thus compen- 
sated. Hyslop v. Finch, 99 111. R., 171. , 

Damages for opening a road are a personal claim assessed in favor of the owner s4 

the time of the injury, and do not run with the land. Tenbroke v. Johke, 77 Penn. St. R., 392. 

An owner of land already burdened with a private right of way and an incipient 
dedication to the public, is entitled to no more than nominal damages, if it is taken for a public 
highway. Bartlett v. Bangor, 67 Me. R., 460. 

Damages to which a land owner is entitled for the talcing of his land for a highway 
are not taxable as a "debt" before they become fixed and receivable. Lowell v. Boston, 106 Mass. 
R.,540. 

It has been held in New York that an act of the legislature, giving to commissioners of highways 
the power to lay out new roads through wild or unimproved lands, without the consent of the 
owner, is ui constitutional and void, if no compensation is required to be made to such owner 
Wallace v. Karlenowjski, 19 Barb. R., 118; Gould v. Glass, Id., 179. 

The commissioners' award should show that the question of damages was taken into 

account in regard to all the property taken. 8 Minn. R., 491 ; 10 Id., 82. 

The acquisition of land by condemnation for a public road and payment of dam- 
ages to the owner, will give the public a right to construct a highway as deemed most expedient, 
and the owner canuot afterwards recover for injuries then shown he must unquestionably suffer, 
but such condemnation is no bar to a suit for a subsequent injury growing out of negligence and 
unskillfnlness of public authorities in constructing drains in the highways, resulting in serious 
injury to the owner. Tearney et al. v. Smith, 86 111. R., 391. 

A party to whom damages have been awarded for the laying out of a highway 

through his land, has a right of action against the town therefor. A mandamus will also lie to 
compel the town to audit his claim. Van Vliet ex rel., etc., v. Wilson, 17 Wis. R., 687. But it is doubt- 
ful if an action would lie in the absence of an award, unless it appeared that there had been an at- 
tempt on the part of the owner to agree with the commissioners on the damages. Lincoln v. Colusa 
County, 28 Cal. R., 662. 

The right of taking private property for public use, as for a highway, is called the 

right of eminent domain, and may be exercised by the legislative power at all times, if just compen- 
sation is made to the owner. The aid of a jury, when compensation is to be made by the State, is 
not necessary under the constitution of Illinois. The instrumentality of commissioners is proper. 
Johnson v. Joliet and Chicago P. P. Co., 22 111. R., 202. The right of Eminent Domain is allowed 
to be exercised by railroad companies and other corporations of like nature, on the principle that 
they are a public necessity, and in exercising this right they act as the agents of, and represent tha 
public. Swan v. Williams, 2 Mich. R., 427 ; Bobbin* v. Mil. & H. R. R. Co., 6 Wis. R., 696; Shepard- 
«on v. Mil. & Bel. P. P. Co., et al., Id. 605. 

The right of the State to take private property for public uses cannot bo asserted 
by mere enactment. The Constitution providing that the citizen shall not be deprived of property 
except by due process of law, or in conformity to the law of the land, requires a trial or judicial pro- 
ceeding and a judgment. Cook v. South Park Commissioners, 61 111. R., 294. 

11 



162 ROADS AND BRIDGES. DIV. II.] 



vacation, widening or alteration, and the land over or on which 
such road is to be established, altered, widened or vacated, and 
naming the owners of such lands, if known, and if not known, 
stating the fact and asking for a jury to assess the damages of 

The law imperatively- requires the commissioners to adjust the question of dam- 
ages to the owner of the land, before the road shall be opened, or worked or used. It does not re- 
3uire the owner to be present and claim damages, to entitle him to coiupensation. It is the mutual 
uty of the commissioners and the owner to endeavor first to agree as to the damages. If they can- 
not agree, it is the duty of the commissioners to have a jury empaneled to assess the damages at 
what may be just and right. The case of Taylor v. Marcy, 25 111. R-, 518, on this subject is modi- 
fied. An attempt to open a road in the absence of an adjustment of the question of damages with 
the owner of improved and cultivated lands upon which the road is located, will be restrained by 
a court of chancery. Commissioners of Highways v. Durham, 43 III. R., !-6. 

It is held in New Hampshire, that the doings of selectmen in laying out highways cannot be 
supported, unless it appear that due recompense was allowed to the owners of lands through which 
■uch highway was laid out, and that the owners had an opportunity to be heard upon the subject of 
damages. Pritchard v. Atkins, 3 N. Hamp. R., 335. See also Curran v. Shattuck, 24 Cal. R., 427. 

Taking private property for public nse. The right of taking private property for pub- 
lie use, is a right inherent in all governments, as necessary to its existence and protection. But, 
the constitution of the United States, and those of the several states, have provided _that compensa- 
tion shall be made to the owner. Since the new era of internal improvements in this country, 
which has been inaugurated within the past half century, there has been much controversy as to 
the power of the legislature under this general constitutional provision. But it is settled in Illi- 
nois under the present constitution, that the compensation must he made in money. Carpenter t. 
Jennings et al., 77 111. R., 250. 

The constitutional provision respecting the talcing of private property for pub« 
lie purposes has no application to the case of a dedication of a highway by the owner, or where, 
from his long acquiescence in the public use of it, a dedication is presumed by law. Bumpus r. 
Miller, 4 Mich. R., 159. 

Land which is taken and used for a highway is taken for public use within the mean- 
ing of the constitution. Norton v. Peck, 3 Wis. R., 714. But it is not so taken or appropriated until 
the road is opened by the commissioners. Evans ex rel., etc., v. James et al., 4 Wis. R , 408. 

Where land is alleged to he injured by the location and opening of a highway through 
it, the measure of damages will be the difference between its market value, at the time, with the 
highway, and its market value without the highway. Sidner v. Essex, 22 Ind. R., 207. 

"Where a road is ordered to be laid out through lands belonging to an estate, an 
assessment of the damages to the heirs of such an estate, is proper and legal. In such case separate 
damages cannot be assessed to the widow on account of an unassigned dower interest. An adjust- 
ment of the equities between the fee and the contingent right of dower, must be left to the widow 
and the heirs. Tedemier et al. v. Aspenwall et al., 43 111. R., 401. 

After the owner of land has accepted the damages awarded to him for opening a 
highway on his land, it is too late for him or his grantee to claim that the proceedings for opening 
it are invalid. Town v. Town of Blackberry, 29 111. R., 137. 

Where a highway is laid out along the line of a farm, taking no portion of the land 
of the owner, but subjecting him to the expense of maintaining the whole of the fence, the ex- 
pense of the half of which only was formerly borne by him, held that such owner is not entitled 
to compensation ; and although damages are allowed to him, the supervisors of the county have no 
authority to cause the same to be collected. People v. Sup'rs. Oneida Co , 19 Wend. R., 120. 

Under the Constitution of 1848, and the statutes in force March, 1870, a party is not entitled to 
damages by reason of the construction of a highway adjoining and abutting against his lands, 
wi'ere no part thereof has been taken for the use of the road. So, where a putlic road is estab- 
lished adjoining the land of another, the town officers may, in opening the same, discontinue a 
division fence wiihout any damage accruing thereby to the owner of the land adjoining which 
the road is established. Hoag v. Swiizer et al., 61 111. R., 294. 

Where a petition for a mandamus to compel the levy of a tax to pay damages 
allowed on laying out a road, described the road as on the center section line of the township of 
Oswego, it was held that the description was too uncertain. The People ex rel. Hillard v. Davis* 98 
111. R., 183. 

To excuse a failure to condemn land for a highway, and the assessment of the 

owner's compensation, on ihegrouift of there being no claim for the same, his release in writing 
should be filed in the town clerk's oflice, and recorded with the order laying out the road. Hyslop 
T. Finch. 99 111. R., 171. 

The right of ithe owner to the damages assessed becomes fixed and vested as soon as 
assessed; and it is held that such right cannot be divested by a subsequent repeal of the statute 
under which the damages were assessed; that the public use of a highway being but an ease- 
ment, subject to which the owner of the land over which it passes retains his title, there is al- 



0IY. n.] DAMAGES — ASSESSMENT. 163 

such owners, and shall present such certificate to some justice of 
the peace of the county, who, on receipt of the same, shall, within 
five days, issue a summons against the land owners concerned; 
which summons shall be in the folio wing form as nearly as the 
case will admit, viz :(1) 

State of Illinois, 1 

County, / 8S * 

The People of the State of Illinois, to any constable of said county, greet- 
ing: 

You are hereby commanded to summon and to appear be- 
fore me at on the day of , at — o'clock, and prove to a 

wars a eontlngency by which the owner may return into full possession of the land on its being 
no longer required by the public. When thia contingent event will happen is ordinarily un- 
known, and is wholly immaterial, as regards the rights of the landholder, whether the public 
obtains the use of the land for a century or for a year, or but for a single day, cannot affect his 
title to a compensation. The People ex rel. Fountain et al. v. Supervisors Winchester Co., 4 Barb. 
R., 276. 

Held also in Massachusetts, that where damages upon laying out a road have been assessed or 
•warded to an individual, the town would be liable for the amount thereof, although the road 
had been discontinued before payment, and in fact never entered upon ; that the owner had a 
vested right to such damages, and was entitled to a writ of mandamus to compel payment. Har- 
rington v. Berkshire, 22 Pick. R , 263. But see Sec. 48, post. 

The fee of the land in the highway, whether it be laid out by law or granted by the 
owner for a highway, remains in the owner, and he may maintain an action of trespass for cut- 
ting timber therein, or ior any exclusive appropriation of the soil. He is entitled to the same 
remedies for an injury to his residuary interest that he would be entitled to if it was entiie and 
absolute. Babcock y.Lamb,l Cowen R., 233; Qidney v. Earle, 12 Wend. R., 98; 3 Hill R., 567. 
The owner retains the exclusive ownership of everything connected with the soil for every pur- 
pose not incompatible with the public right of way. A spring in such a road is not a part of the 
highway and not an incident to the use of the same. Town of Old Town v. Dooley, 81 111. K., 256. 
But it is otherwise in case of streets dedicated by a town plat duly recorded. Hunter v. Middle- 
ton, 13 01. R., 50. 

As a public highway is a mere easement and the seizing and right to convey still con- 
tin ue in the owner of the land over which it is laid out, it is no breach of the covenant of 
•e;zin and power to convey contained in the deed, that part of the land conveyed was a high- 
way and used as such. Whitbeckv. Cook, 15 Johns. R., 483. 

The Constitution of Illinois declares, Art. 2, § 13, that "the fee of land taken for rail- 
road tracks, without consent of the owners thereof, shall remain in such owners, subject to the 
nse for which it is taken." ' 

(1) Form of Commisrionera 1 Certificate and Application for a Jury, 

6tateof Illinois, \ 

County, j S8 ' 

To , Esq., a Justice of the Peace of said county: 

This is to certify that we, the commissioners of highways of the town 
of , are about to lay out [or as the case may be,] a public road de- 
scribed as follows, to-wit: Beginning [describe the route as set forth in 
the petition,] which said road passes over, and is supposed to damage the 
land, described and owned as follows, to-wit: [here describe the land, and 
state the names of owners, if known ; if owners are unknown or non- 
residents, state the facts]. That we have not been able to agree with 
[state names of owners disagreeing with the commissioners,] owners, as 
aforesaid, as to the damages sustained by them by reason of the proposed 
laying out [or as the case may be,] of said road over their lands, nor have 
said damages been by them released. We, said commissioners, therefore 
%sk for a jury to assess the damages of said owners. 

Given under our hanus this day of , A. D. 18 — . 

A. B.,1 Commissioner* 

C. D., * of 

K. F., J Highways. 



164 ROADS AND BRIDGES. [DIY. H. 



Jury then and there to be empannelled, such damages as [he or they] may 
sustain on account of the establishing, altering, widening or vacating the 

road described in a certificate of the commissioners of the town of , 

in *aid county, which certificate is now on file in my office. 

Given under my hand and seal this day of , 18—. 

Justice of the Peace* 

in which summons the justice shall specify a certain place, day 
and hour for the trial, not less than six nor more than fifteen 
days from the date of such summons, at which time and place 
such land owners are to appear. Such summons shall be served 
at least three days before the time of trial mentioned therein, by 
reading the same to the land owners therein named. 

42. Service upon minors, etc.] § 42. If any such owner is 
an infant, such summons shall be served by delivering a copy to 
the infant and its guardian, if any; if no guardian, the person 
with whom he or she resides. If any owner is a lunatic or habit- 
ual drunkard, having a conservator, by delivering a copy to his 
conservator. 

43. Service upon non-resident or unknown owners— Notice.] 

§ 43. In case it shall appear, either from the certificate of com- 
missioners, the affidavit of any person, or the return of any officer 
to whom the notice may be delivered for service, that there are 
non-resident or unknown owner or owners, who cannot be found 
and served within the county, such justice shall also cause notice 
to be delivered to the occupant of such lands and the contents 
and nature thereof to be made known to such occupant and also 
to be posted in three of the most public places in the vicinity of 
such proposed road or alteration, at least ten days before the time 
fixed in the summons for hearing proof of damages, stating the 
time and place, as stated in said summons, and describing the 
road to be established or altered and the lands for which dam- 
ages are to be assessed; and in case service is made upon any 
owner by posting notices as above provided, the justice shall con- 
tinue said hearing for a period not exceeding twelve days.(l) 

(1) In case there are non-resident or unknown owners, the following may be the 
form of stating that fact in the foregoing certificate of the commissioners : 

44 That the owners of the following described lands [here describe the 
samel are non-residents [or unknown] and cannot be found and served 
within the county." 

Form of Affidavit of Persons that Owner of Land is Non-resident or 

Unknown. 

fltate of Illinois, \ oa 

County, / ss - 

Q. H., being duly sworn, doth depose and say that the owners of the 
following lands, to-wit: [here insert brief description of lands'] over which 
ft highway is desired to be established [or as the case may be] are non- 



DrV. IL] DAMAGES — ASSESSMENT. 165 

44. Venire for jury — Change of venue.] § 44. Such justice 
shall, also, forthwith issue a venire, directed to any constable of 
the county, to summon six persons having the qualifications of 
j urors to appear at such time and place as may be designated, for the 
proving of such damages, whose competency shall be determined 
the same as in other civil cases before justices of the peace. 
Either party to the case shall have the same right of challenge as 
in other civil cases; and any deficiency in the number of jurors, 
from whatever cause, shall be supplied by summoning other per- 
sons residing in said county :(1) Provided, that not more than one- 
residents [or unknown] and cannot be found and served within said 
county. G. H. 

Subscribed and sworn to before me, this ) 

day of , A. D. 18—. [■ 

8. W., Justice of the Peace. J 

Form of Return of Officer when Owner of Land {9 Non-resident or 

Unknown. 
Served the within summons by reading the same to the within named 
[Giving names of persons served.] 

R. S., Constable. 
In case of non-resident or unknown owners, that fact should be properly stated in the return. 

Form of Justice's Notice to Occupant of Land, when Owner id Non- 
resident or Unknown or Cannot be Found, 
Btate of Illinois, ) 

County, f S8 ' 

To J. L., occupant of lands, to-wit: [describe the lands."] 

Whereas, the commissioners of highways of the town of , have 

presented to me a certificate stating that they are about to layout a public 
road [or as the case may be,] described as follows: [here describe road as 
petitioned for,] which road is proposed to be established [or as the case 
may be] over lands occupied by you, said occupant, and said commis- 
sioners ask for a jury to assess the damages to which the owners of lands 
may be entitled by reason of the laying out [or as the case may 6e,] of 
•aid road over the same. 

Your are, therefore, hereby notified that on the day of , at — 

o'clock — M., at the office of the undersigned justice of the peace, at , 

proofs of damages sustained on account of the establishing [or altering, 
widening, or vacating,] the road described in a certificate of the commis- 
sioners of the town of , in said county, will be heard by a jury then 

and there empanelled to try the same, which certificate is now on file in 
my office. 

Given under my hand and seal this day of , 18—. 

, Justice of the Peace. 

(1) Form of Venire to JSfummon Jury to Assess Damages. 
Btate of Illinois, \ B 
County, / ss * 

The People of the State of Illinois, to any constable of said county, greet- 
ing: 

We command you to summon six lawful men of vour county, not more 
than one-half of whom shall be residents of the town of [name of town 



166 BOADS AND BRIDGES. DIV. II.] 

half of such jury shall be residents of the town liable to pay the 
damages assessed in the case: Provided, further, that changes of 
venue may be granted, if applied for before the commencement of 
the trial, in the same manner as in other civil causes before justices 
of the peace. 

45. Conduct of trial before justice.] §45. The jury shall 
appear before, and be sworn by such justice faithfully and im- 
partially to assess the damage of each of the owners specified in 
such certificate, or those of them whose claims are then to be 
adjusted, according to law, to the best of their judgment and 
understanding; and all parties in interest shall be entitled to sub- 
poenas and other writs and papers, and the trial shall be con- 
ducted as in other civil cases.(l) 

46. Title of suit— Evidence —Yiew of ground— Benefits.] § 46. 

The case shall be entitled "Commissioners of highways of the 

town of vs. ," [whoever may be summoned as land 

owners] and the jury shall hear such lawful evidence touching 
the question of such damages as may be presented to them, the 
claimants having the right to open and close the case; and shall, 
also, on a request of a majority of the commissioners or owners 

in which proposed road is located'] to appear before me at , on 

the day of , 18 — , at — o'clock — M., who are not of kin to 

[name of land owners'], to make a jury to assess the damages of the persons 
aforesaid sustained by reason of the establishment [or alteration, or widen- 
ing, or vacation,] of a certain proposed road in said town of , pro- 
ceedings in which are pending before me, and have you then and there 
the names of the jury and this writ. 

Witness my hand, this day of , 18—. 

John Doe, J. P. 

The jury will be summoned toy the constable and returns made in like manner at 
other juries in civil actions before justices of the peace. 

Concerning the qualification of jurors and mode of proceeding to determine compe- 
tency, see Hawes' Treatise, New Ed., title "Of the Jury/' p. 383. 

Concerning the challenging of jurors, the general rule in this regard governing civil 
actions before justices of the peace will be observed. The law in full on thissubject will be found 
in Haines' Treatise, New Ed., title "Of the Jury," p. 383. 

(1) Form of Oath of Jury for Assessment of Damages. 

You, and each of you, do solemnly swear that you will faithfully and 
impartially assess the damages of each of the owners of land involved in 
the matter now in hearing, according to law, to the best of your judg- 
ment and understanding. 

The compensation for property- damaged as well as taken, when not made by the 
State, must be ascertained by a jury. The People v. McEoberts, 62 111. R., 38; Kine v. DefenbaugK, 
64 111. R., 291. 

The time fixed for assessing damages in proceedings to lay out a highway, may be 
continued by the justice, if notice has not been served on all the parties in time. Hankins y. 
GaMoway, 88 111. R., 155. 

Concerning rules and regulations for change of venue in civil cases before justices 
of the peace, fully set forth, see Haines' Tbeatise, title " Trial and Incidents Thereto," New 
Ed., p. 375. 



0TV. H.] DAMAGES — ASSESSMENT. 167 

of lands whose damages are to be determined, in a body visit and 
examine the proposed location, alteration, widening or vacation 
of such road, and the lands tj be taken and affected thereby, and 
make a written verdict specifying the amount of damages, if any, 
which every such owner shall recover, and return the same to 
such justice, to be by him entered upon his docket in the nature 
of a judgment : Provided, that in estimating the damages, 
except damages to property actually taken for a road, the jury 
may consider the benefits conferred; but no benefits enjoyed in 
common by the owners of surrounding property shall be con- 
sidered in estimating damages. (1) 

(1) Form of Verdict of Jury Assessing Road Damages. 
Bt ate of imaoM, j gg# Before A B>> Justice of the Peace> 

Commissioners of Highways ] 
of the town of , vs. >■ 

In the matter of the Assessment of Damages consequent upon the laying 
out [or as the case may be] of a road over lands described and owned 
as follows, viz : 

Description of Land. | Owned by 

~ * I 

We, the jury, summoned to assess damages in the above cause, having 
taken the oath required by law, and having heard the evidence presented, 
and having in a body visited aud examined [if such is the fact] the loca- 
tion of the said road, the lands to be taken and affected by the proposed 
laying out of the same [or as the case may be,] do assess the damages at 
what we deem just and right to each of said owners, as follows, viz: 

To the said C D., the sum of dollars. 

To the said E. F., the sum of dollars, [and so on.] 

The above verdict given under our hands, this day of , A. D. 

18 — . [Signed by all the jurors.] 

Under Section 13 of Article 3 of the Constitution, the fall value of land taken for 
a public highway must be paid in money alone, disregarding all benefits and advantages that may 
result to that portion of the owner's land not taken, by reason of the establishing of the road, and 
it is not in the power of the legislature to provide otherwise. Where the record of the proceedings 
by commissioners of highways in laying out a road over a party's land, shows that the jury in 
assessing the compensation to be paid the owner, undertook to pay him in part in benefits to his 
other land by the construction of the road, and not wholly in money, it was held, on application 
tor a certiorari, that the jury transcended their powers, and their action was void, and that it was 
error to refuse the writ. Carpenter v. Jennings, et at. 77 m. R., 250. 

The justice before whom proceedings are had in assessing damages for highway 

^mrposes should make an entry thereof in his docket as in other cases. The following may be ths 
orm of docket entry : 

Form of Docket Entry by Justice. 
State of Illinois, 



County' } ss * Before L. M., Justice of the Peace. 



Commissioners of Highways } 
of the town of , vs. > 

18 — , . The Commissioners of Highways of the Town of , pre- 
sent a certificate showing that a jury is required to assess the damages of 



168 ROADS AND BRIDGES. DIV. II.] 

47. Final meeting of commissioners— Notice.] §47. Within 
ten days after the total amount of damages shall have been ascer- 
tained, either by release or agreement of the parties, or by assess- 
ment before a justice of the peace and a jury, in the manner here- 
inbefore provided, the commissioners shall hold a meeting to 
finally determine upon the laying out, altering, widening or vaca- 
tion of such road, of which meeting said commissioners shall 
give public notice, by causing not less than three notices thereof 
to be posted in public places within the town, at least five days 
prior thereto.(l) 

48. Revocation— New trials.] § 48. In cases where the dam- 
ages are not wholly released or agreed upon, and the commis- 
sioners in case no appeal has been taken, and the supervisors 
hearing the appeal in case an appeal is taken, shall be of the 
opinion that the damages assessed by the jury are manifestly too 

A. B., C. D. and E. F., owners of lands desired to be taken for highway 
purposes, asking a jury to assess the same. 

Venire for jury of six persons, issued and delivered to constable R. S. 

Summons to owners of land, mentioned in commissioners' certificate is- 
sued and delivered to constable R. S- to serve. It appearing that I. K. 
and O. P., named in said certificate, are non-residents, notice to them was 
caused to be posted, as required by law, ten days before the time fixed 
for the apearance of the jury. 

(Date.) Venire returned, jury appear, and are duly sworn. Having 
heard the evidence offered, the jury retire and return their verdict in 
writing, that [set forth the substance of the verdict] 

It is therefore considered by the court that [names of owners'] each have 
and recover, to be paid by said commissioners of highways, with the cost 
of suit, the sums following: 

The said A. B., the sum of dollars. 

The said C. D., the sum of dollars. 

The said E. F., the sum of dollars, etc. 

(1) Form of Commissioners 1 Notice for Final Meeting, 

HIGHWAY NOTICE. 

Notice is hereby given, that the undersigned, commissioners of high- 
ways of the town of , in the county of , and State of Illinois, 

will meet on the day of , A. D., 18—, at o'clock, — M., at 

[state the place of meeting,] to finally determine upon the laying out of a 
road [or as the case may be,] described as follows, to- wit: 

Beginning [here describe the road,] the petition for which road has 
been heretofore considered and the prayer thereof granted, the route 
surveyed and the total amount of damages consequent upon the laying 
out of the same [or as the case may be,] having been now ascertained. 

Dated this day of , 18—. 

A. B.,') Commissioners 
J. K., \ of 

L. M.,J Highways 

Tlve commissioners must lay out tlie whole road as applied for. They cannot 
fard the application and lay out only a part of it. People v. Springwells, 12 Mich. R., 434. 



DIT. H.] DAMAGES — ASSESSMENT. 169 

high, and that tlie payment of the same would be an unreasona- 
ble burden upon the tax-payers of the town, the commissioners, 
or the supervisors who heard the appeal, as the case may be, may 
revoke all proceedings had upon the petition by a written order 
to that effect; and such revocation shall have the effect to annul 
all such proceedings and assessments, releases and agreements, 
in respect to damages growing out of the proceedings upon the 
petition :(1) Provided, upon the final determination of the com- 
missioners of highways, or the supervisors upon appeal being 
determined, and a copy of all such proceedings being filed in the 
town clerk's office, do other proceedings shall be had by the com- 
missioners of highways, nor any petition entertained in regard to 
the same road or petition for two years from the date of filing 
such copies of proceedings. And after two trials as aforesaid, if 
the decision be the same, no other petition shall be entertained 
for the same until the expiration of three years from the filing of 
the last proceediDgs. 

49. Order locating survey— Filed with town clerk.] §49. In 

case the commissioners shall not revoke such prior proceedings, 
they shall make an order, to be signed by them, declaring such 
road so altered, widened or laid out, a public highway, and 
which order shall contain or have annexed thereto a definite de- 
scription of the line of such road, together with a plat thereof. 
The commissioners shall, within five days from the date of such 
order, cause the same, together with the report of the surveyor, 
the petition and the releases, agreements or assessments in 
respect to damages, to be deposited and filed in the office of the 
town clerk, who shall note upon such order the date of such 
rlling.(2) It shall be the duty of such clerk, after the time for 
appeal to supervisors has expired, and in the case of such appeal, 

(1) The order revoking proceedings upon a road petition for the reasons mentioned 

in this section may be endorsed on the petition, and may be in the following words : 

We, being of opinion that the damages assessed by the jury in the with- 
in case are manifestly too high, and that the payment of the same would 
be an unreasonable burden upon the tax-payers of the town, do hereby 

revoke all proceeding had upon the within petition, this day of 

, A. D., 18—. 

R. P., ) Commissioners 
J. K., \ of 

L.M.,J Highways. 

Proceedings to lay out a highway may be revoked by a written order to that effect, 

IS tbe commissioners of highways regard the damages assessed in favor of an owner to be mani- 
festly too high and an unreasonable burden upon the tax-payers, even when the damages are 
agreed upon by the owner and supervisors on appeal. Foos v. Cum'rs of Highways, 88 111. 14L 

(2) The petition of land owners for a highway is a public document, and bo- 
le ngs in the town clerk's office. If a stranger, not a commissioner of highways, gets possession 
of it, the court will compel him by attachment to file it with the town clerk, for the inspection 
of one who is prosecuting a mandamus to compel the opening of the road. People v. Vail, 3 
Co wen R., 623; 1 Cowen K„ 569. 



l^O ROADS AND BRIDGES. [DIV. H. 

after the same shall have been determined, in case the prayer of 
the petition is granted, to record such order, together with the 
plat of the surveyor, in a proper book to be kept for that pur- 
pose.^) 

(1) Form of Order Laying Out, Altering or Widening Highway. 
State of Illinois, 



County 



[•S3. 



Town of 

Whereas, on the day of , A. D. 18—, we, the commissioners 

of highways of the town of , received a petition in writing, of [here 

state the names of the petitioners,'] praying for the laying out [or altering, 
or widening,] of a road as therein and hereinafter described, said petition- 
ers being land owners residing in said town, within two miles of the said 
road [or proposed road] ; and said commissioners did thereupon fix upon 

the day of , 18—, at o'clock — M., as the time when and 

[here state the place of meeting'] as the place where they would 

meet to examine the route of said road, [or proposed road] and to hear 
reasons for and against the laying out [or altering or widening] of the 
same, and gave ten days' notice of the time and place of such meeting 
by posting up notices thereof in five of the most public places in said 
town, in the vicinity of said road, [or proposed road]; and having met 
at the time and place appointed* [if the meeting is adjourned state the 
facts], and having examined the route of said road, [or proposed road,] 
in said petition described, and heard such reasons as were offered for and 
against the laying out [or altering or widening] the same, were of the 
opinion that the laying out [or altering or widening] of said road, [or 
proposed road,] was necessary and proper, and that the public interest 
would be promoted thereby. We, therefore, caused a survey and plat of 

said road to be made on the day of , 18 — , by A. B., a competent 

surveyor, which plat and survey were to us duly reported, and are here- 
unto annexed and made a part of this order; and having ascertained the 
aggregate amount of damages to which the owners of the land over which 
said road [or proposed road] was to pass were entitled, and said damages 
having been definitely fixed by [here state the method by which the 
damages were ascertained as; by agreement between the commissioners 
and the owners ; or the damages having been released by the owner ; or 
the verdict of a jury duly empanneled and sworn for that purpose. If an 
appeal was taken from the verdict of a jury and decided before making 

this order, here state the facts,] we did on the day of , 18 — , at 

o'clock — M., at , [state the place of meeting,] hold a meeting, 

and then and there finally determine upon the laying out [or altering or 
widening] of said road, of which meeting we gave public notice by 
causing three notices to be posted in public places in said town five days 
prior thereto; and having met at the time and place appointed, and the 
aggregate amount of damages on account of laying out [or altering or 

widening] of said road, to-wit : the sum of dollars, appearing to be not 

more than reasonable compensation, and the payment thereof not an un- 
reasonable burden upon the tax-payers of the town, and having made 
such changes in the route of said road between the termini thereof as in 
our judgment the convenience and interest of the public required, as will 
fully appear from the survey and plat aforesaid, and description herein- 
after contained, it was finally determined that the said road belaid out, 
[or altered or widened.] It is, therefore, hereby ordered and determined 
that the said road be and is hereby laid out [or altered or widened,] as 
follows, to-wit: Beginning [here describe the road], as shown by the 



DIV. II.] DAMAGES — ASSESSMENT. 171 

50. Location of roads— Damages released or agreed upon.] 

§ 50. In ca^es where the damages claimed by the land owners 
for the right of way are released, or are agreed upon between the 

plat hereunto annexed, and as so laid out [or altered or widened] is 

declared a public highway of feet wide, the line of said survey 

being the center of said road. 
In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , 18—. 

R. L.,) Commissioners 

E S., \ of 

H. P., J Highways. 

If the meeting of the commissioners of highways is adjourned, that fact should be stated at 
the proper place in the above form, at the *, in the following words: 

"We did adjourn said meeting by public announcement, and by the 
posting of a notice at the time and place named for the first meeting, 

until the day of , A. D. 18—, at o'clock — M., (the same 

being within ten days from the time of the first meeting,) to the [state 
the place], and having met at the time and place appointed for such ad- 
journed meeting, at the time last aforesaid." 

It Is no -valid objection to the form of an order establishing a highway that it con 

tains lengthy recitals where the facts recited are material to the validity of the proceedings. An 
order without these recitals, or statement of facts produced in a collateral proceeding might well 
be rejected as insufficient in not showing affirmatively that the antecedent or jurisdictional steps 
had been complied with. The order should properly show that the commissioners acquired 
jurisdiction of the case by petition in due form of law, and that they subsequently pursued the 
requirements of the law, in laying out and establishing the road. It will then be received as 
prima fade evidence of the facts it contains. Wells etal. t. Bicks, 27 111. R , 343; G. and C U. R. 
R. Co v. Pond, 22 Id., 399; see Harrington v. People, 6 Barb. R., 607; Cassidy v. Smith, 13 Minn. R. 
The recitals in an order laying out a road are prima facie evidence of the facts therein stated. 
Hankins v. Galloway, 88 111. R., 156. 

A full recital in the final order establishing a road of a strict performance of the 

duty of the commissioners in laying out the same is sufficient to confer jurisdiction and sustain 
the proceedings. So. where the recital m the order establishing a road showed that notices for 
hearing reasons had been duly posted, it was held on certiorari sufficient evidence of that fact. 
That alter this order had been duly deposited by ihe commissioners and filed in the office of the 
town clerk, there could be no higher or better evidence of the facts therein recited than the 
order itself furnished. Shinkle et al. v. Magill et al., 58 HI. R., 422. 

No particular form of words is necessary in the order establishing a road, if the 
facts sufficiently appear. Tucker v. Rankin, 15 Barb. R., 471. Where the words used were "have 
and do lay out a highway," it was held to import that the road was laid out at the date of the 
order. Fowler v. Moti, 19 Wend. R., 204. 

The order should he signed by the commissioners, and to show that they acquired 
Jurisdiction, it should set forth the posting of notices as the law provides. Shinkle v. Magill, 58 
111. R., 422; Wiley v. 2 own of Brimfield, 59 111. R., 306 

The order must he made at a meeting held within the time prescribed by the statute, 
anless there shall be an adjournment, ot which there should be a record. If the order is made 
at a meeting held after the time prescribed and there appears no record of adjournment, It will 
be held void on certiorari. Wood v. Commissioners of Highways, 62 111. R., 391. 

Where an order of the commissioners declaring a road established did not give the exact date 
of the meeting to hear objections, held, that a fair construction of the order indicated that such 
meeting was held in apt time. Wiley v. Town of Brimfield, 59 111. R., 306. 

The maxim that "that is certain which can be rendered certain," applies to the order of the 
commissioners of highways establishing a public road. Where such an order failed to show with 
certainty the precise location of the road, but it was described with reasonable certainty in the 
petition, and particularly described in the plat of the survey, which was made part of the order, 
held, thai the plat was a part of the order, which, as well as the petition, might be consulted in 
determining the location of the road The order was therefore sustained. Clifford v. Town of 
Eagle, 35 111. R., 444. The description of a road is sufficiently certain, where, from the whole 
proceedings thereon, there appears no difficulty in locating it. Todemier el al. v. AspinwaU elal~ 
43 III. R.,401. 

Although a road cannot be located from a mere reference to the calls and distance* 
liven in the order establishing it, yet if the court can be satisfied, on calling surveyors and re- 



172 ROADS AND BRIDGES. DIY. IL] 

land owners and commissioners, the commissioners may, at their 
first meeting, or at any adjourned meeting, examine the route of 
the road, and cause a survey thereof to be made, and make their 

ceiving proof on the points of location, that the location of the road can be ascertained, the ordet 
will be deemed sufficient. Com'rs of Highways v. The People, 38 111 R., 348 

It is necessary to the validity- of the proceedings In laying out a road, that ih<tr« 
should be a report and survey. These, and a plat of the road, must accompany the order establish- 
ing the road. Town v. Town of Blackberry, 29 111. R., 137. 

After all parties in Interest have been fully heard, the commissioners may proceed 

and lay out the road at an adjourned meeting without any new notice Westport v. Co. Com'rs, 9 
Allen R (Mass.), 203. This it is understood, however, would not be applicable under the law of 
niinois, until after the meeting of the commissioners to finally determine u to the laying out ot 
the road. 

The acts of a majority of the commissioners, In establishing or vacating highways 
will be legal and binding.but all should have notice of meetings to consider any subject. Com'n 
of Highways v. Swan 65 Barb. R., 210. Where an order establishing a highway, or an instrument 
for other purposes, is signed by two of the three commissioners, it will be presumed that the third 
was present and took part in the proceedings. Louks v Woods, 15 111. R , 256 ; Evans ex rel., etc., v. 
James et al. t 4 Wis R., 408 See Sees. 35, 36 But one commissioner cannot lawfully sign the name 
of another, and make the instrument valid, unless by hb direction or assent- Evans exrel., etc., v. 
James et al.. 4 Wis. R , 498. 

Held, in New York, that an order laying out a highway, signed by only two commissioners, and 
not showing that the third commissioner met and deliberated with them upon the subject mat- 
ter of the order, or that he was duly notified of the meeting and failed to attend, is void. Stewart 
v. Wallis, 30 Barb. R„ 344 , People v Hynds, 30 N Y R., 470; People v. Commissioners of Highways, 
27 Barb. R.. 94. 

. After the location of a highway has hcen determined by the commissioners, the sur- 
vey is a mere ministerial act, and could probably be conducted without the presence of a majority 
of the commissioners. Marble v. Whitney, 28 N. Y. R., (1 Tiffany), 297. 

The survey and plat of a public road is evidence of its location, but is not conclu- 

'aive; like field notes of the government surveys, parol evidence may be received to show that the 
road was actually located diiferently from the calls in the survey of the road. Hiner v. The People, 
84 III. R., 297. 

The order with the petition should he deposited with the town clerk, who should 
note the time of filing the same. But his neglect to mark the correct time of filing will not be 
fatal. A substantial compliance with the requirements of the statute is all that Is necessary. 
'j.own v. Town of Blackberry, 29 111. R., 137. 

The proceedings for the laying out of a road, when commenced should be pursued 
with reasonable dispatch to their completion. A failure in this respect will be an abandonment of 
the proceeding. Com'rs of Highways v. Barry, 66 111. R., 496; citing Town v. Town of Blackberry, 
29 111. R., 137; Allison v. Commissioners of Highways, 54 111. R., 170. 

Upon an application to lay out a road, it is not sufficient to lay out a part only* 

the application can be complied with only by laying out the whole road according to the prayer 
thereof. And where a road is regularly applied for and the commissioners decide to lay out a part 
only, any person through whose land the road runs, as laid, is entitled to take steps to test the va- 
lidity of their action. People v. Town Board of Springwells, 12 Mich. R., 434. And it is equally 
objectionable where the road is extended beyond the termination mentioned in the petition, as to 
that portion extended. State v. Motly, 18 Iowa R., 525. 

An order altering a highway is in law a discontinuance of that part of the road not 
within the bounds of the alteration, without any special order of discontinuance. Rowley v. 
Walker, Allen R. (Mass.), 21. 

If the public is to he charged 'with the abandonment of a road, the proof of the 

actmust be accompanied by the further proof that another road has been adopted in its stead. A 
public road, established by public authority, continues as such until it shall be vacated by a like 
authority. Champlin v. Morgan, 20 111. R., 181; Town of Lewistown v. Proctor, 27 111. R., 414. 

Certiorari is a proper proceeding to test the validity of proceedings in laying out 

a highway, whether by commissioners or supervisors, on appeal. This writ brings up for review 
the whole proceedings in laying out the road, and any defect in the original proceedings may be 
objected to. If the proceedings are found irregular they will be quashed. Dwight v. (My Council 
of Springfield, 4 Gray R. (Mass.), 107; Stale t. Vancleave, 1 Dutch. R. (N. J.), 233; Town of Winfield 
V. Moffatt, 42 111. R., 48. 

The 9th section of the act of 1835, entitled "an act concerning public roads," requires an order 
of the county commissioners' court to locate a new road and to alter or vacate public roads (State 
roads excepted), and when the proceedings had, under said act, to lay out and establish a new 
roafl, merely show the petition for the road, the appointment of viewers, and their report, the 
-prv>«edings are insufficient to establish the road. Nor will any subsequent proceedings "to alter, 



DIV. H.] DAMAGES — ASSESSMENT. 173> 

order establishing, altering, widening or vacating the road, accord- 
ing to the. prayer of the petition, and return the same within the- 
time and in the manner specified in this act.(l) 
51. Inducements authorized.] § 51. Any person or persons 

relocate, or open said road," which are based upon the assumption that the road then existed by 
force of the former and original proceedings, have the eft'ect to establish such highway. Dempsey 
v. Donnelly, 58 111. R., 40. 

The provision requiring the commissioners to keep a correct record of all their official acts and 
proceedings at all meetings, ante, £ 10, p. 127, would require them to keep a record of their proceed- 
ings at meetings in regard to laying out, altering or establishing roads. Their orders establishing 
loads, filed in the town clerk's office, may be considered a record to the extent of the matter set 
ibrth, but there should be a brief entry of their proceedings beyond what the order would properly 
*bow. To this end the law requires that a well bound book shall be provided for that purpose. 
The record should be signed by the president and clerk. Inasmuch as this law now requires such 
record by the commissioners, it would follow that their acts at meetings could not be shown by 
parol, as was formerly held in the absence of a record thereof. See Town of Old Town r. Dooley, 
81 111. R., 255. 

1) The following may be the form of recording the proceedings of the commie- 
•loners at meetings, in regard to highways, in the highway commissioners' record book: 

Form of Record of Proceedings by Commissioners on Road Petition. 

State of Illinois, ) 

County, f-ss. 

Town of J 

The commissioners of highways of the town of met on the 

day of , 18—, at the hour of o'clock, — M., at , in said 

town, In regular meeting [or in special meeting, all having notice 
thereof]; the following commissioners being present, to-wit : [names of 
commissioners]. The petition of twelve land owners was received praying 
that [state what is asked for by the petition]. The commissioners fixed 

upon the day of , 18 — , at the hour of o'clock, — M., as the 

time when, and [state place] as the place where they would meet to ex- 
amine the route of said road and hear reasons for or against the prayer 
of said petition, notice of which is ordered to be given pursuant to th* 
statute. 

The commissioners met again at the time and place last aforesaid and 

considered the premises [or adjourned said meeting to the day of 

, 18 — , at , etc., as the case may be.] At the meeting at the 

time and place last aforesaid the commissioners decided to grant the 

prayer of said petition ; and thereupon on the day of , 18 — t 

caused a survey and plat of said road, to be made by a competent sur- 
veyor, and the matter of damages by owners of land being settled and 
adjusted in the manner as provided by law, the commissioners ordered 
that [set forth briefly what is ordered, thus "that said road be established 
according to said survey," or as the case may be]. All of which is set 
forth and will fully appear by the original papers in said case returned 
and on file in the office of the town clerk. 

A. B.. President, \ Commissioners of 
C. D., Clerk, f Highways. 

The commissioners of highways are not made custodians of the final order 

establishing a road or any other paper connected therewith. They are required to deposit them 
after their proceedings are completed, in the office of the town clerk. In the absence of any re- 
quirement of the statute imposing on the commissioners the duty to deposit with the town cl«rk 
'.heir notice to hear reasons, or to keep it themselves they will not he required to do either. There 
is ao provision for the preservation of this notice. Their recitals in their order laying out a high- 
way in regard to such notice will be received as evidence thereof. Sfiinkle et aLr. Mogul, 68 111. IL, 
422. 

Commissioners of highways ont of office cannot amend their return of their ?r*v 
eeedines already made. Peoohe v. Hiohwav Com'ra. etc.. 16 Mich. R... fi3. 



174 . ROADS AND BRIDGES. DIV. ILj 

interested in the establishment, alteration, widening or vacation 
of any road in this State, are hereby authorized to offer induce- 
ments to the commissioners for the establishment, alteration, 
widening or vacation of any such road, by entering into contract 
with said commissioners, conditioned upon such establishment, 
alteration, widening or vacating, to pay money or other valuable 
thing to the town, for the benefit of the road and bridge funds of 
the same; or to perform any labor, or to construct any road, 
bridge or culvert on any road which said person or persons desire 
to have established, widened or altered. And such contracts in 
writing, made with said commissioners, shall be deemed good and 
valid in law, and may be enforced by said commissioners or their 
successors in office, before any court having jurisdictional) 

52. Records of town clerk evidence.] § 52. The records of 
the town clerk, or a certified copy of such record and papers rela- 
ting to the establishment, location, alteration, widening or vaca- 
tion of any road, shall be prima facie evidence in all cases that all 
the necessary antecedent provisions had been complied with, and 
that the action of the commissioners or other persons and officers, 
in regard thereto, was regular in all respects.(2) 

53. Removal of fence— Notice— Expense.] §53. Whenever a 
public road is ordered to be established or altered, according to 
the provisions of this act, which road shall pass through or on 
enclosed land, the commissioners of highways shall give the owner 

(1) Form of Contract Offering Inducements in Regard to Establishment^ 
Alteration, Widening or Vacation of Road. 

It is hereby agreed on the part of A. B., of the town of , county 

©f , Illinois, with the commissioners of highways of said town, and 

•aid A. B. does hereby offer as an inducement, and the same is accepted 
by said commissioners, that in case said commissioners shall [here set 
forth what action is desired on the part of the commissioners] , that then 

and on condition thereof, the said A. B. will pay to said town of for 

the benefit of the road and bridge fund of said "town dollars lor at 

the case may be], within [state time] after the date of such action on the 
part of said commissioners [or as the facts may be]. 

In witness whereof, said A. B. has hereunto set his hand and seal^ 

this day of , 18—. A. B., [seal.] 

[To be signed also by the commissioners.} 

f2) General Form of Certificate of Town Clerk to Copy of Road Record, 

State of Illinois, 

County 

Town of - 

I, A. B., Town Clerk of said town of , do hereby certify that the 

foregoing [or annexed] is a true and correct copy of the original thereof 
bow remaining on file, and of record in my said office. 

in witness whereof, I have hereunto set my hand, this day 

©f . 18—. A. B., Town Clerk. 



n 



DIV. H.J DAMAGES — ASSESSMENT. 175 

or occupant of such land sixty days notice in writing to remove 
the fences. If such owner or occupant does not remove the fence 
or fences within sixty days after such notice, the commissioners 
shall have the same removed and direct the road to be opened 
and worked; the owner of such premises shall pay all necessary 
costs of removal, and the same may be recovered by the commis- 
sioners before any justice of the peace of the county. (1). 

(1) Form of Notice for Removal of Fences. 
To J. S. : 

You will take notice that the commissioners of highways of the towa 
of , in the county of , have laid out a public highway, agreea- 
ble to an order of said commissioners, bearing date the blank day of 

A. D. 18 — , a copy of which is hereunto annexed; which highway passes 
"through certain inclosed lauds owned [or occupied] by you. [It will be 
well here to describe the premises with reasonable certainty.] You are 
therefore, hereby notified and required to remove your fences from within 
the bounds of said highway, within sixty days after the service of this 
notice. 

Given under our hands, this day of , 18 — . 

A. B., ) Commissioner* 

C. D.. \ of 

E. F., ) Highways. 

In the removal of fences In ease of" improved lands, the Intention of the law Is to 
■ive time for removal and rebuilding thereof. Where the land is unenclosed or fences are volun- 
tarily removed, this portion of the law does not apply. Where fences are voluntarily removed, 
and a subsequent owner of the land replaces them and again obstructs the road, he is not entitled 
to the benefits of the law, or notice to remove such fences. The law does not require an order to 
open the road, except in case of enclosed land and where there is a refusal to remove fences. S«*e 
Hunter v. Jones, 13 Minn. R. It seems that a road passing through unimproved and uninclostxl 
lands, is oonsidered In contemplation of law, opened when established. Ferris v. Ward, 4 Giku. 
R., 499. 

Where a road, after Its survey and location, has not been opened for the use of 

the public, nor the proper notice given to the owner or occupant of the land to remove his fences, 
neither the commissioners nor any other person can remove a fence without becoming trespassers. 
Taylor v. Marcy, 25 111. R., 518. If the fences are removed without giving sixty days notice, as 
require* by the statute, all persons concerned therein are trespassers. Kelley v. Horton, 2 Cowea 
R ., 4'24. 

The order of highway commissioners ii no justification In trespass for opening 
the plaintiffs fence so as to let cattle into his corn, where it is not shown that there was a highway 
legally established at the place. Cadwell v. Evans et al., 85 111. R., 170. 

An overseer of highways In proceeding to open a road by removal of fences, cannot 

Sistify in an action of trespass, by showing merely an order from the commissioners of highways, 
irecting him to open the road; if the legality of the road is questioned, he must show also that 
It was In all respects legally laid out and established. The commissioners, and all persons acting 
under them, must show that a case existed which justified the order by them. GuptaU v. Tcj't, 
16 Iil. R., 86o; Dunning v. Mathews, Id., 308. But where a road is ordered to be openevl, and the 
»wii6j ef the land over which it passes receives the money awarded to him as damages, he i» 
©stopped from alleging that the proceedings were void. Kile v. Town of Yellowhead, 80 111. It,, 20.s. 
An error in assessing damages in proceedings to lay out a highway can not be shown in an actioa 
•f trespass for removing a fence to open a road. Hankins v. Galloway, 88 111. R., 155. ' 

The act of a party in recognizing a highway by repairing a fonce on the side thereof 
4oes aot estop him from afterwards denying that it is a legal highway. Cotn'rs of Highways w. 
iiwan, 66 Barb. R., 210. 

The commissioners can he made to respond In damages if they are misled as to the 
correct line of the road, and in attempting to open it, commit a trespass thereby. Bayer v. Tanner , 
29 111. R., 135. A party pulling down a fence in such oaso, the burden Is upon him to show that it 
was upon the location of the highway as established. Weed v. Sibley, 40 Maine R., 356. 

A copy of the field notes of a survey of a public Highway made Dy a county sur- 
veyor, but not under competent authority, and filed with a town clerk, the copy of which is mad« 
and certified by him, is not evidence to establish the.location of a public road. Nor aro such oouw 



176 ROADS AND BRIDGES. D1V. II.) 



ROADS FOR PRIVATE AND PUBLIC USE. 
Section. 

54. Private roads — width — location — damages — appeals. 

55. Private roads opened within two years. 

56. Private roads over enclosed lands — time for harvesting: crops. 

54. Private roads.] § 54. Roads for private and public use, 
of the width of three rods or less, may be laid out from one dwelling 
or plantation of an individual to any public road, or from one public 
road to another, or from a lot of land to a public road, or 
from a lot of land to a public waterway, on petition to the 

^ a survey made by the same person after he has ceased to be the county surveyor. Gray et al v. 
Waterman, 40 111. R., 522. 

Should commissioners of highways proceed in obedience to the mandate of a court, 
to open a road after it had been discontinued, they would be trespassers. Where a peremptory 
writ of mandamus was awarded against commissioners of highways, requiring them to open a cer- 
tain road, it was held to be a sufficient exouse, on the part of the commissioners, for not obeying 
the writ, that after the writ was awarded, and before it was.issued and served, the road in question 
had been duly vacated. Commissioners of Swan Township v. People ex rel. Welden, 31 111. R , 97. 

Where a fence was removed from what -was supposed to be a public highway, un- 
der direction of a resolution adopted at a town meeting, evidence of such resolution is not admis- 
sible as a bar to the action, nor in mitigation of the actual damages sustained, for towns have no 
sue* power, but such evidence is proper as tending to repel malice, and thus to mitigate punitivt 
damages. Gray et al. v. Waterman, 40 111 R., 522. 

In an action of trespass for removing a fence, the plaintiff, if he recover, may have 
the damage growing out of its removal, and also for loss of crops growing at the time, which re- 
sulted from the perpetration of the unlawful act. In such a case the wrong-doer is responsible for 
all the consequences directly resulting from the unlawful act. Gray et al. v. Waterman, 40 111. JL, 
622. The same rule in Buckmasler v. Cool, 12 111. R., 74. 

Where commissioners of highways had laid out a road In pursuance of law, but 
neglected to file their proceeding, and a mandamus directed to their successors, commanding 
them to open it, by mistake misdescribed the road, on application for a rule requiring the de- 
fendants to furnish the original application, and that the mandamus be amended thereby, it 
appeared that the paper sought for had remained in the hands of H., a former commissioner, 
and was beyond the control of defendants. Motion, therefore, denied as to the defendants. 
But a rule was made upon JEL that he file the paper with the clerk of the town, etc., or show 
lust cause why he should not do so. People v. Vail, 1 Co wen R., 589. 

A mandamus to commissioners ef highways to open and work a road will be 
granted without regard to the near approach of the expiration of their offices; when the termof 
the office expires, their successors must obey the command of the writ. People v. Collins, 19 
Wend. R., 56. But a mandamus is not a proper remedy to try the question of the location of a 
public highway, as between the public and the landholders over whose land it passes. The 
court has a discretion in granting or refusing the writ. People ex rel. Morgan v. Curyea tt al., 16 
HI. R., 547. 

Where a road Is used and traveled by the public as a highway, and is recognized and kept in 
repair as such by the authority whose duty it is by law to open and repair public roads, proof of 
these facts furnishes a legal presumption, liable to be rebutted, that such road is a public high- 
way. JEymanv. People, 1 Gilm. R., 4; Nealy v. Brown, Id., 10. 

Parol evidence is admissible to show where a road is located. Although there 
should be some uncertainly as to the precise location of the road, yet if the evidence be such as 
to convince the jury as to its locaiiou, it in sufficient for them to act upon. Nealy v. Brown, 1 
Gilm. R., 10. 

If the public is to be charged with the abandonment of a road, the proof of the 
fact must be accompanied by the further proof that another road has been adopted in its si -ad. 
A public roa>i. established by public authority, continues as such until it shall be vacated by like 
authority. Champlin v. Morgan, 20 111. R., 181. 

The notice for removal of fences should be served by leaving a copy with the owner 
or occupant, and a true copy should in all cases be retained by the commissioners, as actual 
notice must be proved should it ever be questioned, and will not be presumed. The presump- 
tion which is sometimes indulged in favor of public officers, does not extend to such a case. 
Oate v. Thompson, 6 Wend. K., 034. 

A notice requiring a person to remove two certain rail fences built by him across 
a public road, and specifying the particular place of obstruction by stating the direction of tb* 
fences made by him, was htld sufficient. Ferris v. Ward, 4 Gilm. R., 499. 



DIV. H.] ROADS FOR PRIVATE AND PUBLIC USB. 177 

commissioners by any person directly interested. The com- 
missioners, on receiving such petition, shall have the power to lay 
out the road as asked for therein, to which end they shall proceed 
and examine into the merits of the case, and shall be governed in 
their proceedings by the rules and regulations prescribed in this 
act in relation to public roads. The jury shall consider the dam- 
ages that may result to parties from said proposed road, and shall 
assess the damages to each individual owner of lands affected 
thereby. The amount of such damages shall be paid by the 
persons benefited thereby, to the extent and in proportion that 
they are benefited, to to be determined and declared by the jury. 
The remainder of the amount of damages over and above that 
to be paid by the parties as aforesaid, shall be paid by the town 
as in other cases. The amount of damages to be paid by in- 
dividuals, shall be paid to the parties entitled thereto, before the 
road shall be opened for use. An appeal may be taken on the 

An application for mandamus cannot be defeated by the commissioners of high- 
ways, by showing that sixty days' notice have not been given to owners of lands to remove their 
fences. The object of such proceeding is to compel them to take every initiatory step and per- 
form all acts necessary to open the road, after it has been legally laid out. As a general rule, the 
sixty days' notice to owners of lands required by the statute should be given upon the laying 
out of the road, where an appeal has not been taken. Although the commissioners are not ex- 
pressly authorized to give an extension of time for opening a road, yet the statute should have a 
reasonable construction. Cases may arise where it would not be the duty of the commissioners 
to proceed at once to open a road; as where a road is laid out through cultivated lands at a 
season when there are growing crops thereon. It would not be unreasonable to allow the own- 
ers srhcient time to gather their crops. But the mere fact of its being at a^ season when the 
road could not be put in repair, is not sufficient to authorize an extension of time, nor where 
crops have been planted after the final location of the road. Hail v. The People ex rel. etc., 67 111. 
R., 307. 

It is no defense against a proceeding by mandamus to compel the commissioners of 
highways to open a public road established bv them, that the same will not be fit for travel until 
bridges are built, requiring a large sum of money, and that there are no funds to build the same. 
The command to open does not require the road to be put in good order. The question of the 
utility of the road is not involved in such suit. Sheaff, Com'r, v. The People, 87 111. R., 189. 

In an application for mandamus against the commissioners of highways to compel 
them to open a road, any citizen of the town may be relator, and institute the proceeding. He 
need show no other interest than that of being a citizen of the town. Hall etal.v. The People ex 
rel. etc., 57 111. R M 807. 

Assessment and payment of damages. It seems to be settled that the commissioners of 

highways cannot be compelled to open a road until the damages assessed to owners of lands 
taken have either been released or they have been paid their damages, or that it be shown that 
there is money under the control of the commissioners with which to tender or pay the dam- 
ages assessed. In the case of Hall et al. v. The People ex rel., etc., 57 111. R^ 807, which was an appli- 
cation for mandamus to compel the opening of a highway, the court say (Scott, Justice,) : 

The petition in this case is manifestly defective, in not averring that the damages assessed to 
the land owners on the route of the road have been paid or released, or that there is money 
under the control of the commissioners of highways with which to tender or pay the damages 
so assessed. No man can be compelled to part with his property without just compensation. This 
is a constitutional right that he cannot be deprived of by any statute. No corporation, public or 

f»rlvate, can appropriate the property of any one to their own use without first tendering orpay- 
ng the damages assessed under the forms of the law. The party ought not to be driven to his 
action against a corporation, responsible or irresponsible, for his damages. This would be to 
take his property without first making compensation, and would be a plain violation, of a con- 
stitutional right. Under the peremptory writ awarded in this case, if the damages have not 
been paid or released by the owners of the land, it would be the duty of the commissioners of 
highways to tender such damages before proceeding to open the road. It was, therefore, ma- 
terial that the relators should aver in their petition, and prove that the damages which had been 
assessed to the land owners had either been paid or released, or that there was money in the 
town treasury with which to pay the same, or that such funds were otherwise under the contrel 
of tb«? commissioners. 

12 



178 ROADS AND BRIDGES. [DIY. IL 

question of the propriety and necessity of such road as in other 
cases. (1) 

55. Private roads opened within two years.] § 55. If such 
road or cartway shall not be opened by the petitioners within 

(1) Form of Petition for Road for Private and Public Use. 

To the Commissioners of Highways of the town of , in the county 

of , State of Illinois : 

The undersigned person, directly interested therein, does hereby peti- 
tion you to lay out a road for private and public use, of the width of 

rods, [or, feet,] as follows, to-wit : [here state the point of beginning,'] to 
[state the place to which the road is desired to run and terminate']. The 
names of the owners of lands over which the same is to pass are, A. B., 
C. D. and E. F. Your petitioner prays that you will proceed to lay out 
said road, and cause the same to be opened according to law. 

Dated at , this day of -, A. D. 18 — . L. M. 

The petition for a road for private and public use, and all proceedings by the 

commissioners and others in relation thereto, are required to be substantially the same as pre- 
scribed in relation to public roads. 

The form of proceedings heretofore given relating to public roads may be used in case 
of private roads, by varying the same to suit the occasion. 

The provision requiring the commissioners to proceed and examine into the mer- 
its of the case, and that they shall be governed in their proceedings by the rules and regulations 
prescribed in relation to public roads, would require them to fix upon a time and place when and 
where they will hear reasons, and to post notices thereof, and the same as to adjourned meetings. 
They should cause a survey to be made, and adjust the damages in the same manner as in case of a 
public road, using tlie term, "road for private and public use," instead of "public highway," o* 
other like term. 

The constitution concerning private roads, Art. 3, \ 30, declares that "The General 
Assembly may provide for establishing and opening roads and cartways, connected with a publio 
road, for private and public use." 

The intention of this provision is to place all ways on the footing of public highways. It has 
been doubted whether the legislature could authorize the taking of private property for mere pri- 
vate ways, even though provided for by the constitution, because private property could only be 
taken against the consent of the owner for public use. Concord Railroad v. Greeley, 17 N. Hamp. 
B.47. 

An uninterrupted use and enjoyment of a private way over the land of another for 
twenty years, in the absence of evidence of express grant becomes an adverse enjoyment, sufficient 
to raise a presumption of a grant. But such use, to be conclusive evidence of a right must have 
been continuous, uninterrupted and exclusive; that is, under a claim of right, with the knowledge 
and acquiescence of the owner. The use of an easement for twenty years unexplained, will be 
presumed to be under a claim or assertion of right, and adverse, and not by the leave or favor of 
the owner; and such a use will not only give a title by prescription, but will authorize the pre- 
sumption of a grant. When a right to a private way is acquired by prescription, or by user of 
twenty years, it can only be lost by a non-user of twenty years, or by a release. A void proceed- 
ing for laying out a private road or a void grant, may form the basis of an adverse use and enjoy- 
ment of an easement in land. The consent of the owner of land to the laying out of a private 
road across his land, may be presumed from his acquiescence and the acquiescence of those deriv- 
ing title from him, in the uninterrupted use of the road as a private road by others for twenty 
years. Such consent will render the proceedings for laying out the road valid. Miller v. Oarlock, 
8 Ilarb. R., 153. 

A prescriptive right of way over the land of another cannot be acquired short of 
twenty years' continuous and uninterrupted adverse enjoyment. Where the use has been for that 
length of time, and it has been peaceable, the law presumes a grant. If the use of a right of way 
lacks in time, in peaceable enjoyment, or is founded on a lease, it will not amount to a prescriptive 
right, even if more than twenty years have elapsed. Where a person enters as the tenant of an- 
other, he cannot acquire a prescriptive right of way over the lands of his lessor, which he thus 
holds as tenant. Kuhlman v. Hecht, 77 111. R., 570. • 

Open and adverse use for twenty years, although beginning in trespass, will establish a 
right of way. Sibley v. Ellis, 11 Gray R., (Mass.), 417. 

A right of way cannot arise from mere necessity, independent of any right by pre- 
scription. Tracy v. Atherton, 35 Vt. R., (6 Shaw.] 52. But a right of way from necessity may be 
created where the owner sells land which is wholly surrounded by other lands of the grantor. In 
such case, the purchaser will have the right of way over the grantor's land, to and from his o\» a. 



DIY. II.] TOWN AND COUNTY LINE ROADS. 179 

two years from the time of making the order for the location of 
the same, such order shall be regarded as rescinded. 

56. Private roads over inclosed lands— Harvesting crops. § 

56. When such road or cartway is proposed to pass over inclosed 
lands, the owners of such lands shall have a reasonable time, not 
exceeding eight months, to be designated by the commissioners, 
to harvest crops and remove fences which may be on such lands 
before such road or cartway shall be opened. 

TOWN AND COUNTY LINE ROADS. 

8kotion 

57. Location of public roads on township or county lines and into 

other townships. 

58. Roads between towns— expenses of opening and repairs. 

57. Location of public roads on township or county lines.] 

§ 57. Public roads may be established, altered, widened or va- 

Rut if a party sella land not entirely surrounded by his own, but only adjoining the same, the pur- 
chaser acquires no right of way, by implication, over the remaining land of the grantor, even 
( hough it lies between the land bought and the public highway. Kuhlman v. Hecht, 77 111. R., 570. 

A sift of the right of way is not a gift of the earth, and other materials within the 

ooundary lines of the way given. Smith v. Rowe, 19 Ga. R., 89. 

Supposing the title of a person to a private road by prescription to be otherwise perfect, the fact 
> h.tt such road has become less important to him than formerly, will not put an end to his right to 
ise it. Crounse v. Wemple, 29 N. Y. R„ (2 Tiffany), 540. 

A. -r'ght of way, derived in express terms, is appurtenant to the dominant estate, and 

passes by a conveyance of such estate without express mention of the appurtenances. It is a charge 
upon the servient premises, and continues such when they are in the hands of any subsequent 
purchaser. Lide v. Hadley, 36 Ala. R., 627; Kuhlman v. Hecht, 77 HI. R., 570. 

A way held by grant or prescription will pass toy conveyance of the land with 

which it is used and enjoyed as an appurtenance. But a mere license to use a way, which has not 
ripened into a right, but may be revoked, is not an appurtenance, and will not pass to a grantee of 
the land. Kuhlman v. Hecht, 11 HI. R., 570. 

"Where a party obtains a private road of the width of two rods, the owner of the 

land through which it passes must so build his fences as to leave full two rods in width in every 
part of the road; he cannot build a Virginia fence, placing the center on the exterior lines of the 
two rods, with the angles projecting into the road. A party will be deemed, however, to have 
assented to such location of the fences, if apprised that the damages of the owner of the land were 
assessed in reference to such location, or if he permits the fences to be thus built without objec- 
tion. Herrick v. Stover, 5 Wend. R., 589. Held, also, Id., that where a party obtains a right to a 
private road, he will be entitled to an action against the owner of the land, if he places his fence 
ten or twelve feet on the land acquired for the road, unless he has yielded his assent expressly or 
impliedly to such a location. But it seems that if the plaintiff had assented to the location as 
made, or if he had seen the defendant constructing his fence as it is, and knowing that the angles 
encroached upon the road and was silent, he would not be permitted to maintain an action for 
damages. 

An obstruction of a private road is a mere private injury, in which the public have 
no concern. Fowler v Lansing. 5 Wend. R. , 580. An obstacle placed in a private road by the owner 
of the land over which it is laid out, cannot lawfully be removed by one having no right to use the 
road. Drake v. Rogers 3 Hill R., 604. But as by the law of this State private roads are also for 
public use, it is a question how far the rule of the foregoing decisions will apply to private road* 
established under our present law. 

Where it appeared that a road was from two and a half to three rods wide, that it 

terminated at As house without connecting with any other road, that it had never been used by 
the public, and the record on file with the town clerk described it as a " highway for A., begin- 
ning," etc., held, though it also appeared that for many years it had been included in a road district, 
the evidence did not authorize the court to pronounce it a public highway as a matter of law, but the 
question should at least have been submitted to the jury. It would seem that this evidence 
3nowed the road to be a mere private one, intended for the accommodation of A. Drake t. Roger*, 
3 Hill R., 604. 

If a private way Is opened, leading from a public street, and prepared for use in 

the same manner as a public street, and with nothing to show that it is not such, the public may 
lawfully travel over it. although it is closed at one ond. Danforth v. DurrrM, 8 Aljen R. fafaas | 242 



180 ROADS AND BRIDGES. DIV. II.] 

cated on township or county lines, or from one township into 
another, in the same manner as other public roads, except that in 
such case a copy of the petition shall be posted up in, and pre- 
sented to the commissioners of each town interested, said petition 
to be as in other cases, and signed by not less than twelve land 
owners residing in either county within two miles of the road 
so to be altered, widened, located or laid out; whereupon it shall 
be the duty of the commissioners of the several towns to meet 
and act as one body, in the same time and manner as in other 
cases, in considering the petition, viewing the premises, adjusting 
damages, and making all orders in reference to such proposed 
road, alteration, widening or vacation, and a majority of all such 
commissioners must concur in all such orders; and a copy of all 
final orders and plats and papers shall be filed and recorded in 
each of the counties and towns interested. 

By the words "either county," in the eighth line of the preceding section, 
should be understood either township or county. This is specified in the amend 
ing act of June 16, 1891, which further provides that " in case a railway riglit 
of way, or a stream of water joins [longitudinally] such boundary line, then 
along the line of such right of way or stream; " also, that county or town line- 
roads may be "condemned or vacated" in the same manner. (See sec. 64, 
post.) 

Form of Order of Commissioners of Adjoining Towns Establishing, etc., 
a Road on County or Town Lines. 

Whereas, on the day of , A. D. 18—, we, the commissioners 

of highways of each of the towns of and , in the county of -, 

tnd State of Illinois, received a petition in writing, of [here state the 
names of the petitioners ,] praying for the establishing [or altering, or 
widening, or vacating,] a road upon a line between said towns, [or on tne 

county line, or from township into township,] as therein 

and hereinafter described, said petitioners being land owners residing 
within three miles of said proposed road, [or as the case maybe]; and 
copies of said petition having been duly posted in each of said towns, 
and also presented to the commissioners of highways of each of said 

towns, said commissioners did thereupon fix upon the day of , 

18 — , at — o'clock — M., as the time when and as the place where 

they would meet to examine the route of said proposed road, and to hear 
reasons for and against the establishment of the same [or as the case may 
be], and gave ten days' notice of the time and place of such meeting by 
posting up notices thereof in five of the most public places in said 
towns, in the vicinity of said proposed road [or as the case may be] ; and 
the said commissioners of each of said towns having met at the time and 
place appointed, and acting as one body, [if the meeting is adjourned, 
state the facts,] having examined therouteof said proposed road [or as the 
case may be,] in said petition described, and heard such reasons as were 
offered for and against the establishment of said proposed road [or as 
the case may be], were of the opinion that the establishment of said pro- 
posed road [or as the case may be] was necessary and proper, and that the 
public interest would be promoted thereby. We, therefore, caused a sur- 



1)IV. II.] TOWN AND COUNTY LINE ROADS. 181 

58. Roads between towns— Expenses of opening and repairs.] 

§ 58. The commissioners shall also, in case a new road is estab- 
lished, allot to each of such towns the part of such road which 
each of such towns shall open and keep in repair, and the part so 
allotted shall be considered as wholly belonging to such town,(l) 

vey and plat of said road to be made on the day of , 18—, by 

A. B., a competent surveyor, which plat and survey were to us duly re- 
ported, and are hereunto annexed and made a part of this order; and 
having ascertained the aggregate amount of damages to which the owners 
of the land over which said road was to pass were entitled, and said dam- 
ages having been definitely fixed by [here state the method by which the 
damages were ascertained. If an appeal was taken from the verdict of 
a jury and decided before making this order, here state the facts] we did 

on the day of , 18 — , at o'clock — M., at [state the 

place of meeting'], hold a meeting and then and there finally determined 
upon the establishment of said proposed road [or as the case may be], 
or which meeting we gave public notice by causing five notices to be 
posted in public places in said towns not less than five days prior thereto; 
and having met at the time and place appointed, and the aggregate 
amount of damages on account of laying out of said proposed road [or as 

the case may be], to-wit : the sum of dollars, appearing to be not more 

than reasonable compensation, and the payment thereof not an unreason- 
able burden upon the tax-payers of said towns, and having made such 
changes in the route of said proposed road between the termini thereof, as 
in our judgment the convenience and interest of the public required, as will 
fully appear from the survey and plat aforesaid, and description herein- 
after contained, it was finally determined that the said proposed road 
be established [or as the ease may be]. 

It is, therefore, hereby ordered and determined that the said road be and 
is hereby established as follows, to-wit: Beginning [here describe the road] 
as shown by the plat hereunto an nexed, and as so establ ished [or as the case 

may be], is declared a public highway of feet wide, the line of said 

survey being the center of said road. 

In witness whereof, the said commissioners have hereunto set their 

hands, this day of , A. D. 18—. 

C. D., ) Commissioners of High- 
E. F., Y ways of the Town 

G. H., J of . 

J. K., 1 Commissioners of High- 
ly M., >■ ways of the Town 
N.O.J of . 

The location of a high Tray near to a town line, but wholly within the town, and not 
on the line, nor partly within both towns, is authorized to be done by the commissioners of the 
town in which the road is located. That in such case it does not require the joint action of the 
highway commissioners of both towns; otherwise, when it is located on the town line, partly in 
each, as then it becomes a road common to both bodies, and under the joint control oi the two, 
and it must be located and maintained under the provisions of Sections 57, 58 of this act. See 
Mack v. Commissioners of Highways, 41 111. R., 378. 

(1) Form of Order of Commissioners Allotting Repairs, etc., to Towns. 

The commissioners of highways of each of the towns of and 

in the county of , and State of Illinois, having on the 



day of , 18 — , established a new road on the line between said towns 

described as follows: [give brief description of the road,] do allot to each 
of such towns the part of such road which each of said towns shall open 
and keep in repair, to-wit: To the said town of the following part 



1&2 &OAJ>S AND BRIDGES. DIV. 11.] 

They shall also divide the expenses and damages which may 
accrue from such location, widening or alteration, and. if they 
cannot agree, they shall refer the matter to three disinterested 
land owners, as arbitrators, whose decision shall be final. (1) 

of such road [here describe the same], and to said town of the fol- 
lowing part of such road [describe the same.'] 

Given under our hands this day of , A. D. 18 — . 

[To be signed by the commissioners of each town.] 

(1) Form of Order of Commissioners Dividing the Expense* and Dam- 
ages Between the Towns. 

The commissioners of highways of each of the towns of and , in 

the county of , and State of Illinois, having on the day of , 

18 — , established a new road on the line between said towns, described as 
follows [give brief description oj road], do divide the expenses and dam- 
ages which may accrue from such establishing between said towns as 

follows: To said town of , dollars, and to said town of , 

dollars. 

Given under our hands this day of , 18—. 

[To be signed by the commissioners of each town.] 

Where a road Is locate tl on the dividing line between townships, the commissioners 
of the towns must allot the expenses of keeping up the road as nearly equal as possible, each 
road to be attached to the town in which it lies, and a record of the partition and allotment to 
be made in the office of the town clerks of each of the respective towns. Without such allot- 
ment the road cannot be opened, neither of the towns having power to act. Keech v. The People, 
25 111. R., 478; Nies v. Franzen, 18 Wis. R., 537. The road, in such case, should be opened by th* 
commissioners of the town to which road districts are allotted; such allotment gives to the com- 
missioners jurisdiction over so much of the road as is contained in the road districts allotted to 
their town. 

The reference to land owners to determine as to the proper division of expenses and 
damages should properly be reduced to writing by the commissioners in the form of an order, 
and preserved with the other papers in the case. The order may be in the following form: 

Form of Order of Commissioners Referring Matter of Expenses and 
Damages to Land Owners. 

The commissioners of highways of the towns of and , in 

the county of , and State of Illinois, being unable to agree on 

dividing- the amount of expenses and damages between said towns, which 
accrue from the establishment of a certain road located at [describe loca- 
tion of road], do refer the matter to A. B., C. D. and E. F., three disin- 
terested land owners, as arbitrators to decide the same. 

Witness the hands of said commissioners of highways this day 

of , A. D. 18—. 

[To be signed by the commissioners of each town.] 

A copy of the order of reference may be given to the land owners as notice Of 
their appointment 

Form of Award of Land Owners on Division of Expenses and Damages. 

We, the undersigned land owners, to whom was referred by the com- 
missioners of highways of the towns of and , the matter ot 

dividing the expenses and damages between said towns, which accrue 
from the establishment of a certain road located [describe the road], the 

total amount of such expenses and damages being $ , do determine 

and award that said amount be divided and paid by said towns as follows' 
[here stale the amount apportioned to each town.] 

Witness our hands, this day of , A. D. 18 — . 

[Signed by the land owners.} 



DIV. It] ROAD APPEALS. 183 



BOAD APPEALS. 

Section. 

59. Appeals to supervisors— petition filed with justice. 

60. Justice summon supervisors to hear appeals — proceedings. 

61. Decision on appeals shall be final— report— compensation of supers 

visors. 

62. Appeal bonds — costs. 

63. Disagreements between commissioners of different towns — appeals. 

59. Appeals to supervisors —Petition filed with justice.] § 59. 

Any person or persons interested in the decision of the commis- 
sioners in determining to, or in refusing to lay out, alter, widen 
or vacate any road, or revoking any previous order or decision 
relative to any road, or in the verdict of any jury in assessing 
damages in opening, altering or vacating any road, may appeal 
from such decision to three supervisors of the county, outside of 
the town or towns in which such road or proposed road is 
located, within ten days after such decision has been filed in 
the office of the town clerk, by riling a written petition with 
some justice of the peace of the county, asking for an appeal, 
and stating on what ground such appeal is taken. (1) 

60. Justice summon supervisors — Proceedings.] § 60. It 
shall be the duty of the justice of the peace to cause to be sum- 

(1) A party who does not own land adjacent to the road is not interested in the de- 
cision of the commissioners so as to give him a right of appeal under the statute ; so held under 
a statute giving the right of appeal to owners or agents of land upon the route or line, or over 
which the proposed highway run. Taylor et al. v. Commissioners of Highways of Normal, 88 111. 
K.. 526. But in a later case it was held that the right of appeal is not limited to persons whose 
lands adjoin upon the road, the statute giving an appeal to persons interested, and it was con- 
sidered that this admitted of a wider application than the words owners of the land upon the 
route or line of or over which the highway run. Whitmer v. ComWs of Highways, 96 111. R., 289. 

If commissioners of highways, in making an order to lay oat a highway have no 

Iurisdiciion, their proceedings will be void and there will be nothing to appeal from. An appeal 
a a recognition of jurisdiction. Frizzell et al. v. Rogers, 82 111. R., 109. 

Form of Petition for Appeal from Decision of Commissioners. 

State of Illinois, \ ea 

County, / bS ' 

To H. B., a Justice of the Peace in and for said county: 

The undersigned, A. B., C. D. and E. F., persons interested in the decis- 
ion of the commissioners of highways of the town of , in said county, 

in determining [or refusing] to lay out a road [or as the case may be] as 
follows: [describe the road) do hereby appeal to and submit the matter 

in controversy to the decision of three supervisors of the county of 

aforesaid, to be summoned by you agreeably to the statute in such cases 
made and provided; the order of said commissioners embodying said 

decision was filed in the town clerk's office of said town on the day 

of , A. D. 18 — , a copy of which is hereunto annexed, iu and by 

which the road in question and the proceedings and determination of 
said commissioners will more fully appear. The grounds upon which 
this appeal is taken are [here briefly state the grounds], and said appeal is 
brought in relation to the laying out of said road [or as the case may be], 
and to reverse entirely the decision of said commissioners [or as the case 
may be]. The undersigned being owners of land [or as the case may be] 



184 ROADS AND BRIDGES. [Dn 1L 

moned three supervisors of the county, to hear such appeal; And 
he shall fix in such summons upon a time and place, neai the 
road in question, when such appeal will be heard by them; And, 
at least three days before such trial, shall give a written notice to 
the said commissioners, and. to at least three of the petitioners, 
of the time and place of said trial; and upon such appeal the said 
supervisors shall have the same power and authority that is by this 
act conferred on the commissioners, not only in regard to the laying 
out, altering, widening or vacating any road, but shall have the same 
power to cause a jury to be called to assess damages, whenever the 
state of the proceedings require it, and the supervisors cannot 
agree with the owners of the land in regard to the same.(l) 

over which said highway is laid out [or as the case may be], therefore ask 
that you, as such justice of the peace, will proceed, according to iaw, and 
summon three supervisors to hear and determine said appeal. 

Dated this day of , A. D. 18—. A. B. t 

C. D. f 
E. F. 

It Trill toe -well to annex a copy of all papers In the case occurring anterior to the 
order of the commissioners of highways, as well as a copy of the order, and have the town 
clerk certify the whole to be correct copies of the original on file in his office. The appeal may 
be by various persons at different times, but they should be heard at the same time. Corley d 
al. v. Kennedy, 28 111. R., 143. 

It has been held in New York, Bushwick v. Messerole, 10 Wend. R., 122, that an appeal, stating 
the proceeding of commissioners in laying out a road to be illegal, is a sufficient compliance with 
the law, requiring the grounds of the appeal to be briefly stated, in the case where exceptions 
were taken to the sufficiency of the petition, on the ground of the qualification of the petitioners 
within the meaning of the law, yet it was thought it would have been well to have specified the 
objection. 

A n appeal suspends the powers of the commissioners; and until their acts are af- 
firmed by a decision they cannot open the road. If they do so, they are trespassers. Clark v. 
Phelps, 4 Cowen R., 190. 

If on an order toeing made discontinuing a highway, a fence be built across it, an 
appeal subsequently brought will not have the effect of rendering the fence a public nuisance. 
Drake v. Eodgers, 3 Hill R., 604. 

After the appeal the supervisors will become actors, and if they do not proceed, it 

cannot be imputed as laches to the party. Clark v, Phelps, 4 Cowen R., 160. 

The remedy hy a party aggrieved, in case of an irregular or illegal proceeding by 
the commissioners of highways in making an order changing a road, where the commissioners 
have acquired jurisdiction, is by an appeal from the action of the commissioners or certiorari. 
Bailey v. McCain, 92 111. B,., 277. 

On an appeal from any order of the commissioners of high Trays concerning a 

public road, where the three supervisors obtain jurisdiction, the power of the commissioners 
over the matter embraced in the appeal is suspended fur the period of two years, and they can- 
not, within that period, make any orders except in furtherance of that of the supervisors. If 
the period aforesaid has elapsed, without any steps being taken to open the road or pay dam- 
ages, the commissioners of highways may, if in their judgment the damages are manifestly too 
high, and their payment an unreasonable burden on the tax-payers, make an order revoking or 
vacating all the proceedings of the supervisors. The People ex rel. v. Com'rsof Highways Town 
0/ Oswego, 103 111. R., 640; see ante, Sec 48. 

(1) Form of Summons to Three Supervisors to Hear Appeal. 
State of Illinois, \ 

County, / ss - 

The People of the State of Illinois, to A. B., Supervisor of the town of 

— , C. D., Supervisor of the town of , and E. F., Supervisor 

of the town of : 

You, and each cf you, are hereby summoned to meet on the dav 



DIV. II.j ftOAD APPEALS 185 

61. Decision on appeals final— Report— Pay of Supervisors.] 

§ 61. The decision of a majority of the supervisors in any appeal 
case shall be taken as the decision of said supervisors; and they 

of , 18—, at the hour of o'clock — M., at , then and there 

to hear a certain road appeal, taken by G. H., on a written petition duly 
filed with the undersigned justice of the peace. 

Given under my hand this day of , 18—. 

L. M., Justice of the Peace. 

Form of Notice of Appeal to be Given to Commissioners of Highways and 

Petitioners. 

To J. B., D. T., T. J., Commissioners of Highways of the town of , 

in the county of : 

Take notice that on the day of , A. D. 18 — , E. H. presented 

to the undersigned L. M., a justice of the peace of the county of , a 

written petition asking for an appeal from the decision of the commis- 
sioners of highways of the town of , in the said county, made on 

the day of , A. D. 18—, laying out a highway [or as the case 

may be~\ as follows: [describe the road], and that said appeal will be tried 

before three supervisors duly summoned for that purpose, at , on 

the day of , 18 — , at the hour of o'clock — M. 

Dated this day of , A. D. 18—. 

L. M., Justice of the Peace. 

This notice should be served by delivering a copy to each of the commissioners, or 

by leaving at their dwelling. 

The form of notice to the three petitioners will be substantially the same as that to the com- 
missioners, except as to the address, whicn may be as follows: 

"To [name the petitioners] three of the petitioners who petitioned tor 
the road herein described." 

The not ice should be served upon the three petitioners in like manner as upon the 
commissioners of highways, so that each may have a copy. A true copy should be retained by 
the person or persons taking the appeal; and the person serving such notice should make affi- 
davit of the fact, to be endorsed upon the back of the copy of the notice retained, which affida- 
vit may be in the form following: The supervisors to whom an appeal is taken, cannot act un- 
less the commissioners and three of the petitioners are notified, and should they do so, their 
action is invalid. The appeal, however, will not be dismissed on failure to give the notice; it 
will stand until acted on by the supervisors. McPherson et al. v. Holdridge, 24 111. R., 38. 

Form of Affidavit of Service of Notice of Appeal upon Commissioner* of 

Highways. 
State of Illinois, \ 

County, / 8S * 

E. M., being duly sworn, doth depose and say: That he did, on the 

day of , A. D. 18—, make service of a notice in writing, of which 

the within is a true copy, upon A., B. and C, commissioners of highways 

of the town of , in said county, by delivering one to each of said 

commissioners, [or by leaving at their dwelling houses, as the case may 
be.] E. M. 

Subscribed and sworn to before me, this ) 

day of , A. D. 18—. [ 

8. V., Justice of the Peace. J 

Form of Affidavit of Service of Notice of Appeal upon Three of the Peti- 
tioners. 
State of Illinois, , 



Cou 



lOlS, 1 

nty, / 



E. P., being duly sworn, doth depose and say: That he did, on the 



:} 



lB6 roads And bridges. [div. rL 

shall make a report of their proceedings and decision in the case, 
and in like manner that is by this act required of the commission- 
ers, and shall be entitled to two dollars and fifty cents per day. 
Their decision shall be final in regard to laying out, altering, widen- 
ing or vacating such road, or in refusing to do the same.(l) 

day of , A. D. 18 — , make service of a notice in writing, of which 

the within is a true copy, upon E. B., W. C. and G. S., being three of the 
petitioners who petitioned for said road, by delivering one to each of said 

Eersons, [or by leaving at their dwelling houses, as the case may be.] 
ubscribed and sworn to before me, this ) E. P. 

day of , A. D. 18—. 

S. V., Justice of the Peace. 

The law does not provide for notice of an appeal to the owners of land affected. 
This is a defect in which the courts can afford no relief. It is the duty of such owners to take 
notice of the appeal from the proceedings pending, without special notice, and follow it up. 
Wells et at. v. Hicks, 27 111. R., 343. 

The attendance of a majority of the commissioners of highways, it seems, would 
be a waiver of notice as to the commissioners, but the attendance of one only will not have that 
effect. 20 Wend. R., 186. If the commissioners of highways and two of the petitioners appear 
before the supervisors on the day fixed by them, any informality there may be in the notice is 
waived, and if a postponement is then and there had to a future day, by consent, it is regular. 
Anderson v. Wood et al., 80 111. R., 15. 

Where commissioners of highways have acted upon a petition and treated it as 
valid, they cannot afterwards in any proceeding in which they may be concerned, deny its suffi- 
ciency. See Carmel v. Judges of Putnam Co., 7 Wend. R., 264. 

■Where the supervisors dismiss an appeal and adjourn without any intention of 
further action, they cannot resume the subject, unless notice of the time and place of a future 
meeting is served on the commissioners of highways and on the three petitioners before served, 
and without these the action of the supervisors is void. Keech v. The People, 22 111. R., 478. 

(1) Form of Order of Supervisors on Road Appeal — Appeal from Decision 

in Favor of Road. 
State of Illinois, \ Q£ 

County, / S8 ' 

Whereas, on the day of , A. D., 18 — , H. H., presented to 

L. M., a justice of the peace of the county of , a written petition 

asking for an appeal from the order and determination of the commission- 
ers of highways of the town of , in said county, in laying out a 

highway, made on the day of , 18 — , aud thesaid justice of the 

peace having summoned us, the undersigned, three supervisors of said 
county, outside of said town, for the hearing of said appeal, and we hav- 
ing met in said town on the day of , 18 — , at o'clock, — M., 

at [state place], to hear the proofs and allegations of the parties, being 
the time and place fixed upon in said summons, when and where we 
would meet to consider such appeal ; and it appearing that said commis- 
, sioners of highways and three of the petitioners in said case had been 
duly notified of the time and place of such hearing as required by law, 
did proceed to hear the proofs and allegations of the parties, and to con- 
sider said appeal; and we, being fully advised in the premises, do adjudge, 
order and determine that the order and determination of said commis- 
sioners of highways be and the same is in all things affirmed [or as the 
lase may be] . 

In witness whereof, we have hereunto set our hands this day of 

, A. D. 18—. 

J. S., Supervisor of the town of . 

R. P., Supervisor of the town of — . 

H. J., Supervisor of the town of %, 

Fees of Supervisors, — days each, $ . 



MY. H.] ROAD APPEALS. 187 

62. Appeal bonds— Costs.] § 62. Any parties taking an ap- 
peal from the award of the decision of the commissioners, or the 
verdict of the jury, shall file a sufficient bond with the justice of 

Form of Order of Supervisors on Road Appeal — Appeal from Decision 

Refusing Road. 

State of Illinois, 



County, 



} 



Whereas, on the day of , A. D. 18—, J. R. presented to 

E. B., a justice of the peace of the county of , a written petition, 

asking for an appeal from the determination of the commissioners of 

highways of said town of in refusing to lay out a highway [or as 

the case may be], which refusal appears endorsed on the petition for said 
road, returned and riled in the office of the couniy clerk of said county, 

on the day of , 18 — , and the said justice of the peace having 

summoned us, the undersigned, three supervisors of said county, outside 
of said town, for the hearing of said appeal, and we, having met in said 

town on the day of , 18—, at o'clock, — M., at , to 

hear the proofs and allegations of the parties, being the time and place 
fixed upon in said summons, when and where we would meet to consider 
such appeal; and it appearing that said commissioners of highways and 
three of the petitioners in said case had been duly notified of the time and 
place of such hearing, as required by law, did proceed to consider said 
appeal: and having heard the proofs and allegations of the parties, and 
such reasons as were oflered for and against the laying out of said road 
[or as the case may be], we were of the opinion that the laying out of said 
road [or as the case may be], was necessary and proper, and that the pub- 
lic interest will be promoted thereby, and that the decision of said com- 
missioners should therefore be reversed. 

We, therefore, caused a survey and plat of said road to be made on the 

daj T of , 18 — , byH. H., a competent surveyor, which plat and 

survey were to us duly reported, and are hereunto annexed and made a 
part of this order; and having ascertained the aggregate amount of dam- 
ages to which the owners of the land over which said road was to pass 
were entitled, and said damages having been definitely fixed by [here 
state the method of ascertaining the damages. If the appeal is from the 
verdict of a jury and is decided before making this order, state that fact,] 

we fixed upon the day of , 18 — , at o'clock — M., at , 

[state the place of meeting], as the time and place to meet and finally de- 
termine upon the laying out of said road [or as the case may be], as con- 
tained in the order of said commissioners, deposited with the town clerk, 

and filed in his office on the day of , 18 — , of which meeting 

we gave public notice by causing three notices to be posted in public 
places in said town not less than five days prior thereto; and having met 
at the time and place appointed, and the aggregate amount of damages 
on account of the laying out of said road [or as the case may be], to-wit: the 
sum of dollars and cents, appearing to be not more than reas- 
onable compensation, and the payment thereof not an unreasonable bur- 
den upon the tax-payers of the town, and having made such changes in 
the route of said road between the termini thereof, as in our judgment the 
convenience and interest of the public required, as will fully appear from 
the description and plat hereinafter contained, it was finally determined 
that the said road be laid out [or as the case may be.] 

It is, therefore, ordered and determined that the said road be and is 
hereby laid out [or as the case may be,] as follows, to-wit: Beginning 
{here describe the road], as shown by the plat hereunto annexed, and 



188 ROADS AND BRIDGES. »IV. U.) 

the peace or town clerk before taking such appeal, conditioned 
for the payment of the cost of such appeal, in case the decision 
of the commissioners or the verdict of the jury is in all things 



as so laid out [or as the case may be~\ is declared a public highway of 

feet wide, the line of said survey being the center of said road. 
In witness whereof, we, the said supervisors, have hereunto set our 

hands, this day of , 18—. 

T. A., Supervisor of the town of . 

C. S., Supervisor of the town of . 

D. K., Supervisor of the town of . 

The supervisors have the same power and authority on appeal as commissionera 
of highways, including the calling of a jury to assess damages when it shall become necessary. 
The forms heretofore given in proceedings before commissioners of highways may be used in case 
of appeals before supervisors by varying the same to suit the occasion. The changes required will 
be but slight. In all recitals where "commissioners of highways" occurs it may be changed to 
" three supervisors of the county of , before whom an appeal is pending from the commis- 
sioners of highways of the town of ." This is the only essential change required in the 

forms heretofore given for commissioners of highways." See ante, p. 154, 168. 

The final order of the supervisors on appeal should be drawn with the sarae care as 
that by commissioners of highways. It should in like manner show either by recitals therein or 
by documents and papers annexed and referred to, a history of the whole proceeding, so as to make 
a perfect record; the foregoing form is recommended as being the most convenient method of the 
two. It has been held in New York, Harrington v. People, 6 Barb. R., 607, that to give commis- 
sioners of highways jurisdiction of proceedings to lay out a highway, an application must be made 
to them in writing, duly signed as required by law; and that an order directing the laying out of a 
highway, made on appeal from the decision of such commissioners, must show the making of such 
application to the commissioners, otherwise the order will not be conclusive evidence of the 
regularity of the proceedings for laying out the road. 

The regularity of proceedings hefore the commissioners of highways, such as suffi- 
ciency of notice, cannot be questioned for the first time, and reviewed before the supervisors on 
appeal. Smith v. Alexander, 34 Ind. R., 454 ; Wells et al. v. Hicks, 27 111. R., 343. The only ques- 
tions for the supervisors to decide on an appeal, are, as to expediency or inexpediency of the road, 
and the amount of damages which the appellant will sustain by its location over his land. The 
question of the jurisdiction of the commissioners could not arise on such a proceeding. Commis- 
sioners v. Harper, 38 111. R., 104. It is no part of the duty of the supervisors to hear dilatory and 
technical objections. Beadles v. Smith, 15 111. R., 326. 

The supervisors have, no doubt, authority to determine whether the appeal is 
properly before them by being regularly taken ; as that a sufficient bond has been filed and ths 
appeal taken by persons duly qualified. Town of W infield v. Moffat et al., 42 111. R., 48. But it 
seems they have no authority to entertain an objection to the regularity of the proceedings ante- 
rior to the decision of the commissioners; as their decision can only be on the merits as to the 
necessity and propriety of laying out the road, and if any irregularity has intervened previous to 
the decision of the commissioners, it can only be corrected by certiorari directed to the commis- 
sioners. Warwick v. Judges of Oswego Co., 13 Wend. R., 433. All objections of a dilatory nature 
should be made before the commissioners of highways, and should they err in their proceedings, 
the remedy by certiorari, and not an appeal, is the proper course, and which it seems would be 
awarded in such cases. See People v. Wilkinson, 13 111. R., 660. 

Upon an appeal to supervisors from the decision of the commissioners of high- 
ways, as to the laying out of a road, it is not necessary that the supervisors should examine the 
entire road. It will be sufficient if they examine that portion of the road against which the objec- 
tions are urged. Commissioners, etc., of Sonora v. Supervisors of Carthage e f c, et al., 27 111. R., 411. 

On an appeal from the doings of the commissioners in laying out a road, an inquiry into the 
damages of the owners of lands, it seems, will be proper to enable the supervisors to determine 
whether the benefit will equal the expense, and whether the public good will be promoted by the 
road. Bushwick v. Messerole, 10 Wend. R., 122. 

It seems that supervisors on hearing appeals from commissioners of highways, 
decide the appeal, not on the facts existing at the time of the original application to the commis- 
■ioners, but on the facts existing at the time of the hearing before them. In this respect, the hear- 
ing before them is in the nature of a new proceeding. See People v. Goodwin, 4 Seld. R., 573. 

After the supervisors have determined a case submitted on appeal, it becomes an 
act done, and their power over the subject is exhausted. They cannot resume it and change the 
result. People v. Ferris, 41 Barb. R., 121. 

But where supervisors have committed errors in their order, reversing the order 
of the commissioners and determining to lay out a road they have a right, it seems, after filing 
their order, to deposit in the town clerk's office a document correcting the errors, which will bi 
deemed a valid amendment. The reversal of the commissioner's order and determination to lav 



MV. II. J ROAD APPEALS. 189 

sustained, or the appeal dismissed; if the award of the highway 
commissioners, or verdict of the jury, shall not be sustained, the 
town shall pay the cost of such appeal.(l) 

63. Disagreement between commissioners of different towns- 
Appeals.] § 63. When the commissioners of one town disagree 

out the road, were quasi judicial acts, and could not be reversed or altered by the supervisors; but 
making up the record of their proceedings was ministerial, and should they refuse to make 
such correction, it seems a mandamus will be awarded, requiring them to do so. Hallock v. Woolsey, 
23 Wend. R., 328. 

"Where tlie commissioners of highways refuse to open a road laid out by the 
supervisors, on appeal, a mandamus lies to compel them to do so; which writ need not in the 
first instance be directed to the commissioners by their individual names. It is only in case of 
disobedience to the writ that they are to be proceeded against personally. People v. Champion, 16 
Johns. R., 61. 

It has been held in New York, 7 Wend. R., 264, that a general appeal from the determination 
of commissioners refusing to lay out a road, is a sufficient compliance with the requirements of 
the statute. 

Wliere proceedings have been token by highway commissioners in laying out a 
highway, and confirmed on appeal, held, that a writ of certiorari should be directed to the board of 
appeal, and not to the commissioners, and where directed to the latter, it was quashed. French v. 
Commissioners, 12 Mich. R., 267. 

(1 ) Form of Appeal Bond when Appeal is from Decision of Commissioners 

Know all men by these presents, that we, H. H. and A. T., of the town 

of , in the county of , and State of Illinois, are held and 

firmly bound unto the town of , in said county, in the penal sum 

of dollars, for the payment of which well and truty to be made, 

we bind ourselves, our heirs, executors and administrators, jointly, sever- 
ally and firmly by these presents. 

Signed witn our hands and sealed with our seals, this day of , 

A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden H. H. has appealed from the decision of the commissioners of 

highways of the said town of , in laying out a highway [or as the 

case may be] from [here describe the road], by their order bearing date 
the day of , 18—. 

Now, therefore, if the above bounden H. H. shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the determina- 
tion of the commissioners of highways in the premises shall be in all 
things sustained, or the appeal dismissed, then the above obligation to be 
void , otherwise to remain in full force and virtue. 

H. H., [SEAL.] 
A. T., [SEAL.] 

Approved by me, this day of , A. D. 18—. 

L. M., Justice of the Peace. 

Form of Appeal Bond when Appeal is by Person Interested in Verdict of 
Jury Assessing Damages. 

Know all men by these presents, that we, S. P. and A. H., of the town 

of , in the county of , and State of Illinois, are held and 

firmly bound unto the town of , in said county, in the penal sum 

of dollars, for the payment of which well and truly to be made, 

we bind ourselves, our heirs, executors and administrators, jointly, sev- 
erally and firmly by these presents. 

Signed with our hands and sealed with our seals, this day of , 

A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden S. P,, a person interested in the verdict of the jury who assessed 



190 ROADS AND BRIDGES. DIV. n.] 

with the commissioners of an adjoining town in regard to the 
laying out of a new road, or the alteration, widening or vacation 
of an old road on any county or town line, appeals may be taken 
from such decision, in the same manner as where the road is 
wholly in one town. When such decision is in regard to a road on 
a county line, two supervisors shall be selected from one county 
and one supervisor shall be selected from the other, by the justice 
of the peace, who shall issue his summons accordingly.(l) 

damages in the matter of the laying out of the road [or as the case may 
be] from [here describe the road] has appealed from the decision of the 
commissioners of highways in said matter. 

Now, therefore, if the above bounden S. P., shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the said verdict 
of the jury in the premises shall be in all things sustained, or the appeal 
is dismissed, then the above obligation to be void, otherwise to remain in 
full force and virtue. 

S. P., [SEAL.] 

A. H., [seal.] 

Approved by me, this day of , A. D. 18—. 

L. M., Justice of the Peace. 

If the bond on appeal is deemed insufficient in not reciting the case in question cor- 
rectly or in the manner of its execution, the objection should be made before the supervisors. If 
adjudged insufficient, it is but reasonable that the party should be permitted to cure the defect by 
filing a new bond. Where two names are affixed to a bond, being the same persons who take the 
appeal, and no other names appear as sureties, for the purposes of the case, one may be regarded 
as surety for the other. Even if this were not so, the objection comes too late on certiorari. Town 
of Winfield v. Moffat, 42 111. R., 47. 

(1) The above section provides for an appeal in case of a road on a county or town 
line, when the commissioners of highways of one town disagree with the commissioners of an 
adjoining town, the manner of taking the appeal is as prescribed in section 59, ante, except 
as contained in the last clause of the section relating to decisions when the road is on a county line. 
The petition in such case, it would seem, may be presented to any justice of the peace of the 

"[ be 
iny ju 
the road in question runs or is proposed to be located. 



county. If the road is on a county line it would seem proper that the petition should be presented 
to any justice of the county in which the person taking the appeal resides, on the line of which 



Where the commissioners of highways disagree as to a road or proposed road on a 
town or county line, it is proper that they should make a statement or certificate of the fact, In 
writing in duplicate, and deposit one with the town clerk of each town, which may be in the fol- 
lowing form: 

Form of Certificate of Commissioners of Highways of Disagreement as to 

Road on Town Line. 
State of Illinois, \ 

County, I 88 * 

This is to certify that we, the commissioners of highways of the towns 
of Rome and Troy, in said county, having received a petition to establish 
[or as the case may be,] a road on the line of said towns, described as 
follows: [describe the road as in the petition], and having duly considered 
the same, the commissioners of said town of Rome have disagreed 
with the commissioners of said town of Troy in regard to the laying 
out of the same [or as the case may be]. 

Given under our hands, this day of , 18 — . 

n* 5'' ICom'rs of Highways 



E. F., J 



of Rome. 



t ir' ICom'rs of Highways 
f M;; } of Troy. 



DIV. II.] TOWN, COUNTY AND STATE LINE ROADS. 191 

ROADS ON BOUNDARY LINES. 

64. County and town line roads — repairs of.] § 64 All 

roads heretofore or hereafter laid out on town or county lines shall 
be divided, alloted and kept in repair in the manner as hereinbefore 
directed. Any public road that is or shall be laid out on any county 
or town line, and in case a railroad right of way or stream of water 
forms the boundary line of the town or county, or crowds the public 
road off from such town or county line, then the road alongside such 
railroad right of way or stream of water, shall be held to be a road on 
a county or town line, although owing to the topography of the ground 
along such county or town line, or at the crossing of any stream of 
water the proper authorities in establishing or locating such road may 
have located a portion of the same to one side of such county or town 
line or railroad right of way, or stream of water, and the expenses of 
keeping in repair such road shall be assessed by each town or county 
interested. [As amended 1891. 

65. Roads on State lines— Location.] § 65. Roads may be 
laid out and opened upon the line between this and any adjoining 
State, as provided in the preceding sections, whenever the laws 
of such adjoining State shall be applicable. 

COMPENSATION OF COMMISSIONERS — PENALTIES. 

66. Compensation of commissioners.] § 66. The commis- 
sioners shall each receive for their services the sum of one dollar 
and fifty cents per day for each day necessarily employed in the 
performance of their duties, upon a sworn statement to be filed 

Form of Petition for Appeal in Case of Town Line. 
State of Illinois, 



County, / S8, 



To H. B., a justice of the peace of said county of : 

The undersigned, A. B., CD. and E. F., persons interested in the estab- 
lishment of a road on a town line between the towns of and , in 

said county [or as the case may be], wherein the commissioners of high- 
ways of said town have disagreed, a copy of their certificate in regard 
thereto being hereunto annexed and made part hereof, said road [or pro- 
posed road] being described as follows: [here set forth a brief descrijition 
of the road as in the petition to the commissioners'], do hereby appeal to 
and submit the matter in controversy to the decision of three supervisors 

of said county of , to be summoned by you agreeably to the statute 

in such case made and provided. 

Dated this day of , 18—. 

{Signed by the Petitioners. ) 

The forms ^riven in case of appeals in other cases may be used in appeals in case of 
town lines by slight changes to suit the occasion. Instead of the words "decision" or "determi- 
nation of the commissioners of highways," the following expression may be used, "the disagree- 
ment of the commissioners of highways of the town of Rome with the commissioners of highways 
©1 the town of Troy." 



192 



ROADS AND BRIDGES. 



[DIV. IL 



by each commissioner in the town clerk's office, showing the 
number of days he was employed, and the kind of employment, 
and giving the dates thereof. (1) 

67. Refusal or neglect of duty— Penalties.] § 67. If the 

commissioners shall wilfully refuse or neglect to perform any of 
the duties enjoined on them by this act, they shall severally "for- 
feit not less than ten dollars nor more than fifty dollars, and may 
be proceeded against in the name of the town, severally or jointly, 
for the recovery of such forfeiture before any justice of the peace 
in the proper county having jurisdiction. 

LAW OF THE ROAD — REGULATIONS AND PENALTIES. 

Section. 

68. "Carriages" — term defined. 

69. This act not to interfere with ordinances regulating licenses in 

cities and towns. 

70. Destroying or defacing guide boards or mile stones — penalties. 

71. Obstructing highways — penalties. 

72. Depositing garbage in roads — penalties. 

73. Destroying or injuring sidewalks, bridges, culverts, etc. — penalties. 

74. Suits for recovery of fines and penalties, and on contracts. 

75. Fines paid into treasury of town commissioners. 

76. Cattle crossings under roads. 



(1) Form of Sworn Statement of Compensation by Commissioner oj 

Highways. 
State of Illinois, ) aQ 

County, ] 

Statement of A. B., one of the commissioners of highways, in and for 

the town of , in the county aforesaid, of services rendered as such 

commissioner showing the number of days employed and the kind of 
employment, and giving the dates thereof: 



Date. 


Kind of Employment. 


No. of Days. 


Amount. 


18—. 
July 5. 


Services employed in laying out road from 
to 


1 
1 

1 


1.50 


11 6. 


Services employed in letting contract to repair 
bridge over river 


1.50 


11 7. 


Services in receiving bids and letting contract 
to construct road from to 

Total number of days employed 


1.50 




3 


$4.50 









The foregoing is a correct statement of the services rendered by me as 
commissioner of highways, showing the number of days I was employed 
and the kind of employment with the dates thereof. The total number 
of days employed to date being three. 

Witness my hand this day of , 18 — . 

A. B., Com'r of Highway*. 
Subscribed and sworn to before me, this) 

day of , 18—. • r 

L. M., Justice of the Peace, j 



DIY. H.] LAW OF THE ROAD — REGULATIONS AND PENALTIES. 195 

77. " Right of the road " — penalties for neglect. 

78. " Drunken drivers "—penalties. 

68. Carriages— Term defined.] § 68. The term " carriage," 
as used in this act, shall be construed to include stage coaches, 
wagons, carts, sleighs, sleds and every other carriage or vehicle 
used for the transportation of passengers and goods, or either of 
them. 

69. Act not to interfere with ordinances.] § 69. Nothing 
contained in this act shall interfere with or affect any law con- 
cerning hackney coaches or carriages in any of the cities of this 
State, nor interfere with nor affect the laws or ordinances of any 
such city for the licensing or regulating such coaches or car- 
riages. Justices of the peace shall have jurisdiction in all cases 
arising under this act, where the penalty does not exceed their 
jurisdiction. 

70. Destroying or defacing guide-boards— Penalties.] § 70. 

For destroying or defacing any guide-board, post, or mile-stone, 
or any notice or direction put up on any bridge or otherwise by 
or with the authority of the commissioners, the offender shall 
forfeit as [a] sum not less than three dollars nor more than iiity 
dollars. 

71. Obstructing Highways— Pen^ 1 ties.] § 71. If any person 
shall injure or obstruct a public road by felling a tree or trees in, 
upon or across the same, or by placing or leaving any other ob- 
struction thereon, or encroaching upon the same with any fence, 
or by plowing or digging any ditch or other opening thereon, or 
by turning a current of water so as to saturate or wash the same, 
or shall leave the cuttings of any hedge thereon for more than ten 
days, they shall forfeit for every such offense a sum not less than 
three dollars nor more than ten dollars, and in case of placing 
any obstruction on the highway, an additional sum of not exceed- 
ing three dollars per day for every day he shall suffer such ob- 
struction to remain after he has been ordered to remove the same 
by any of the commissioners; complaint to be made by any per- 
son feeling himself agrieved :(1) Provided, this section shall not 

(1) Building a fence upon a road, whether across the *ame or longitudinally with 
the road, is an obstruction thereof, and the person obstructing is liable to the statutory penalty for 
suffering the fence to remain there after being ordered to remove it by the highway commission- 
ers. Boyd v. Town of Farm Ridge, 103 111. R., 408. 

Where the owner of the soil dug a raceway across a road to conduct water to his mill, 
it was held that he must restore it to a traveling condition, and if any injury occurred, though h« 
ased the utmost care to prevent it, he was liable in damages; that the right of the owner deptii'led 
upon mere sufferance: whenever an injury occurred the raceway would be adjudged a nuisance. 
Ojjfjeri v. Schenck, 23 Wend. R., 446. 

The fact that a road is little used does not authorize a party to close it up. Dumart v. 
t^iuris, 15 111. R.. 543. 
The obstruction of a highway, which cannot he u*rd \>y the public, for the pur- 

13 



194 ROADS AND BRIDGES. DIY. H.] 

apply to any person who shall lawfully fell any tree for use, and 
will immediately remove the same out of the road, nor to any per- 
son through whose land a public road may pass, who shall desire to 
drain his land, and shall give due notice to the commissioners of 

pose of a highway, in consequence of natural obstacles, is not a punishable offense. State v. Shit* 
he. 40 Iowa R.- 131. 

A temporary obstruction would not necessarily be deemed an obstruction of the highway 
so as to incur the penalty, unless it appeared to be done with intent to prevent the free use thereof. 
Wyman v. The State, 13 Wis. R.. «63. Building materials for temporary use may lawfully be placed 
upon the highway so long as the use is not negligent nor unreasonable. Mallory v. Griffey, 85 Pa. 
St., 275. 

A party may remove a fence erected across a highway, if it has before the erection of 
the fence been duly opened, without being guilty of trespass. Muicy v. Taylor, 29 111. R., 634. 

All the land within a highway fence is not necessarily subject to the right of wayj and 
if not it may be occupied by the owner; and if he places an obstruction there and another is in- 
jured by it he is not thereby liable; and it is held that though such obstruction be within the high- 
way, he is not liable, unless the person injured exercised ordinary diligence to avoid it. 6 Cowen 
R., 189. Yet he would be otherwise liable for obstructing the highway. See The People v. St. Louis, 
6 kilm. R., 371. 

The replacing of gr«tes across a highway after they have been removed by the commis- 
sioners of highways, constitutes a new offence, for which the offender may be convicted. Henline 
t. The People, 81 111. R., 269. 

It is a legitimate use of a street or highway to allow a railroad track to be laid in it. Mur- 
phy v. City of Chicago, 29 111. R., 280. 

Failure of the owner of land to remove a fence built by a former owner across a road does not 
constitute the offense of obstructing the highway, in the absence of notice to remove it. State v. 
Robinson, 52 Iowa, 228. 

A fence placed in the highway for the purpose of protecting a growing hedge, if built 
pursuant to the statute, is not considered an obstruction in the highway. Harding v. Town of 
Hale, 61 111. R., 192. 

Shade trees along a highway, although within the bounds of the road, are the property of 
the owner of the land adjoining; they are subject to his control, and he has a right to remove 
them. Lancaster v. Richardson, 4 Lansing R. (N. Y.), 136. 

Refusing to remove a fence which was in a high-way when it was laid out does not 
constitute the offense of obstructing a highway by building a fence therein. The People v. Young, 
72 111. R., 411. 

A fence built so as to encroach upon a highway is a public nuisance, but if there is 

Bufficient room for persons to travel along the highway it will be unlawful for a traveler or other 

grivate person to remove it. Griffith v. Cullom, 46 Barb. R., 46 L; Howard v. Robbins, 1 Lansing 
.., 63. 

Where a bridge over a navigable stream is built for public uses, and produces a public 
benefit, and leaves a reasonable space for the passage of vessels, it is not indictable. Mississippi 
etc., R. R. Co. v. Ward, 2 Black. R. (U. S.), 485. 

There is a difference between the offense of obstructing a highway and continuing an obstruc- 
tion. Crosby v. Gipps, 19 111. R., 310; Bicktrdike v. Dean, 21 111. R., 199. 

Whilst a party may be indicted for obstructing a public road, or continuing an 
obMruction, he should be prosecuted civilly for the penalty, after he shall have been ordered to re- 
move it. Under an indictment for obstructing a road, he cannot be convicted for continuing an 
obstruction. These are distinct offenses. Lowe v. People, 28 III. Ji., 518. He should at any rate 
have notice to remove the obstruction. Sweeney v. The People, 28 111. R., 208. 

Obstructing a public highway by building a fence therein, is a different and distinct 
offense from that of refusing to remove a fence which was in the road when it was laid out. Peo- 
ple v. Young, 72 111. R., 411. Where the wrong cot sists in the omission to remove fences existing 
before the establishment of the road, the prosecution should be under that section of the stature 
applicable to the offense of omission, rather than under that section contemplating some act done 
by the offender after the establishment of the road, and the defendant is entitled to ask instruc- 
tions to the jury concerning the admissibility of evidence under those sections of the statute upon 
which the prosecution is based. Wiley v. Town of Brimfield, 59 111. R., 306. 

A person is liable to the statutory penalty for continuing an obstruction, although 
the penalty for the original obstruction may be barred by the statute of limitations. Boyd v. Town 
tf Farm Ridge, 103 111. R., 408. 

A party obstructing a public highway is liable to the penalty imposed by the road 
iaw, and he may also be punished for the same offense by indictment under Section 221 of the 
riminal code. Wragg v. Penn Township, 94 111. R., 11. The fact that a statute declares that * 



OIY. n.] LAW OF THE ROAD — REGULATIONS AND PENALTIES. 



195 



finch intention : And provided, further, that the commissioners, 
after having given reasonable notice to the owners, or persons so 
obstructing or plowing or digging ditches upon such road, of the 
obstruction, may remove any such fence or other obstruction, fi»l 

party may be indicted or sued before a justice of the peace for obstructing a public highway, can- 
not in anywise deprive the circuit court of jurisdiction in such case, as that is conferred by bectiou 
12, Art. 6 of the Constitution. The People v. Young, 72 111. R., 411. 

A road only one mile long, and from ten to fifteen feet wide, leading from a public 
highway to a church, and used by the people of the neighborhood for sixty years in g9 1Q g ™> a ° a 
from the church, and which connected with a country road leading to a mill in the neigbbornooo- 
and to a railroad station, but which had never been under the charge of an overseer, nor worked 
as a public highway, is not a public highway so as to subject one to indictment for obstructing a. 
State v. McDaniels, 8 Jones L. (N. C), 284. 

Where one obstructs a road which is used by the public for even the shortest period 
of time, he does so at his peril, for it it should be made to appear that such road was 1 eg aU y® s / a *' 
iished, he would be accountable whether he had actual knowledge of the fact or not. Xtrru V. 
Ward, 4 Gilni. R., 499. 

A private corporation is liable to an action for an injury to a traveler from an obstruc- 
tion placed by it in a way built and kept in repair by it, and used by the public so as to have be- 
come a public way, although the corporation was not authorized bv its charter to build it. lay tor 
v. Boston etc., Co., 12 Gray R (Mass ), 415. But an indictment could not be maintained unless tn« 
road was shown to be a public highway. State v. Price, 25 Md. R., 449. 

The statute makes it an indictable offense " to obstruct or encroach upon public high- 
ways, private ways, streets, alleys, commons, landing places, and ways to burying places; ana 
provides a fine not exceeding 8100. For subsequent offense, a like fine and to be confined in county 
jail not exceeding three months. Rev. Stat., Crim. Code, §g 221, 232. See Haines' Treatise, new 
ed., p. 635. 

On a trial under an indictment for obstructing a highway, the questions whether 
the road was ever worked or recognized bv the public authorities, or whether the road was ever 
used as a public highway, are proper, and the answers should be admitted in evidence. The des- 
cription of the road in the indictment is material, and must be proved as laid. The description 01 
a road as leading from A. to B. is sufficient. Martin v. People, 23 111. R., 395. 

An indictment for a nuisance in so placing a building that it encroaches on a high- 
wav, need not designate what part of the building so encroaches. State v. Atherton, 16 N. Hamp. 
R.,'203. 

An individual may maintain an action against another for obstructing a highway, 
where special damage to the plaintiff has accrued, but such damage must be peculiar to the plain- 
tiff. Milarke*/ v. Foster, 6 Oreg. R., 378. 

A street of an unincorporated town or village, when dedicated, is a public highway, and 
any person obstructing it will be liable to the statutorv penalty. Otherwise, if incorporated, as 
then the streets are vested in the town, and are subject to the corporate authorities. Leech v. 
Waugh et al., 24 111. R., 228. 

Highways, whether on land or water, are designed for the accommodation of the publio 
for travel or transportation, and any unauthorized or unreasonable obstruction thereof, is, in legal 
contemplation, a public nuisance. Oarrish v. Brown, 51 Maine R., 256; Columbus v. Jaques, 30 Ua. 
R., 506. 

But there is no such thing as a prescriptive right or anv othtr right, to maintain a public nui- 
sance. Philadelphia etc., R. R. Co. v. Stale, 20 Md. R., 157. 

No number of years' continuance -will legalize encroachments upon a public high- 
way regularly laid out and lawfully existing as such. State r. Pieraon, 37 N. J. L., 216. 

No right to obstruct a street or road can be acquired by adverse possession against 
the public. People v. Pope, 53 Cal. R., 437. 

A party is not Uable, as a matter of course, to the highest penalty imposed for obstructing a 
highway. Leech v. Waugh. 24 111. R., 229 

In an action of tort for obstructing a right of way damages for the consequent diml- 
oution of rents cannot be recovered, unless specially alleged in the declaration. Adams v. Barry, 
10 Gray R (Mass.), 361. 

In a suit against one for obstructing a public highway, where there is an apparent 
variance between the description of the road in the notice to the defendant to remove obstructions 
and in the declaration, it is competent to prove by parol that such variance is only apparent, and 
that the description is in fact the same. 'J he People v. Young, 72 111. R., 411. 

Suits for penalties under tbe road law should be in the name of the town as plain- 
tiff, unless where it is otherwise provided. The commissioners of highways cannot sue in their 
osine tor such penalties unless where expressly authorized. Town oj Partridge*. Snyder, 7b ILL 



196 ROADS AND BRIDGES. DIV, II. J 

ap any such ditch or excavation, except ditches necessary to the- 
drainage of an adjoining farm emptying into a ditch upon the 
highway, and recover the necessary cost of such removal from 
such owner or other person obstructing such road aforesaid, to be 

R., 519. It is held that where a statute does not in terms declare in whose name a suit shall be 
conducted for the recovery of a penalty for its violation, but declares that the offender may be in- 
dicted or sued before a justice of the peace, as all indictments run in the name of the people, it 
follows that the suit must be in the name of the people. The People v. Young, 72 111. R., 411. 

A resort to chancery Is proper, and more effectual than the remedy at law, where an 
injury of a public nature is threatened, as the inclosure of a highway, whereby public travel is in 
danger of being interrupted, and thereby great numbers of the citizens subject to petty loss an<£ 
annoyance, by reason of such obstruction. Craig v. The People ex rel., 47 111. R., 487. 

Bat where the nuisance complained of Is the mere obstruction of a highway, the 

remedy at law is complete. If, in such a case, however, it were found that there was no sufficient 
remedy at law, it might be that equity would interpose. Dunning v. City of Aurora et al., 40 111. 
R.. 48L 

A court of equity has jurisdiction to restrain the placing of an obstruction upon a 
public highway, and such action may be maintained by towns, cities and villages in respect to 
streets and highways within their limits. Metropolitan Oily B'y Co. v. Chicago, 96 111. R., 620; 
Langsdale v. Benton, 12 Ind. R., 467; Pettibone v. Hamilton, 40 Wis. R., 402. 

It is the duty of the commissioners of highways summarily to remove from the 
highway a building or other obstruction placed thereon interfering with public travel. They are 
not limited to an action to recover the statute penalty lor its obstruction. Cook v. Harris, 61 N. 
Y. R.,448. 

Mandamus will not he awarded to compel the commissioners of highways to- 
remove obstructions in a highway, when it appears that a remedy may be had by prosecuting 
an indictment against the person guilty of causing the obstruction. Commissioners of Highways 
y. People, 73 111. R., 203. 

Where a road had been opened and traveled for many years, and it was claimed 
that certain parties had obstructed the same by encroachment of their fences to its center, which 
tact was disputed, and it appeared that the encroachment, if any, was made under an honest 
claim of right, held, that it was error to award a mandamus against the commissioners of high- 
ways to compel them to remove the obstruction, there bting no such duty imposed on them by 
statute, and because the law afforded ample redress by suit for the penalty imposed, and by in- 
dictment, in which the parties charged could be heard in defense of their claim. Commissioners 
of highways v. 'J he People, 66 111. R., 339. 

In an action to recover a penalty for obstructing a highway, it was held that it 

is not necessary to produce record evidence of the road, and if such evidence is introduced, as 
for instance the order establishing the road, it is not necessary, prior to the iniroduction of such 
order, to show that all the previous steps required by the statute have been taken ; but that the 
presumption is, that the antecedent proceedings have been regular, which presumption, how- 
ever, is subject to be rebutted. Nealy v. Brown, 1 Gilm. R., 10; see, also, Sage v. Barnes, 9 Johns. 
R., 365. In such an action the defendant's guilt should be established by a clear preponderance 
of evidence ; the rule governing criminal cases does not apply. Town of Havana v. Biggs, 58 ill. 
R., 483. 

If the complainant gives a local description, sufficient to fix the precise point ob- 
structed, and also the points of termination of the road, the latter may be disregarded. But when 
the allegation is general, that a road leading from one point to another has been obstructed, the 
existence of the road between the points named must be proved as a matter of essential descrip- 
tion. The deiendant's guilt must be established by a clear preponderance of evidence, but not 
necessarily beyond a reasonable doubt, as in the case of graver offenses. Town of Lewittown v. 
Proctor, 27 111. R., 414. 

Where the court can, from the petition for a road, the order establishing it, and the 

Flat thereof, locate the road, without any difficulty, as the same road described in the complaint 
.r obstructing a road, there is no substantial variance, although some of the points on the line 
of the road may be described in different language in different parts of the proceedings. Kile v. 
Town of Yellowhead, 80 111. R., 208. 

The fact that a party signed a petition for a road has no tendency to show where it 
was* located with reference to a fence claimed to be an obstruction, nor show that he dedicated 
land to the public to widen the road, when the proof shows he did not own the same. Harding 
v. Town of Hale, 83 111. R., 501. 

It cannot he material to the defendant whether, in the order establishing the road, 
damages were assessed to all the owners of the land along the route, so they were assessed to 
him, he being one of the owners. It might be that the other owners had released the damages, 
or were entitled to none. Clifford v. Town of Eagle, 35 111. R., 444. 

On a Mil to enjoin the tearing down of the fence of complainant, where the defend- 



©IT. H.] IAW OF THE ROAD — REGULATIONS AND PENALTIES. 197 

collected by said commissioners before any justice of the peace 
iiaving jurisdiction. (1) 

72. Depositing garbage in roads— Penalties.] § 72. It is 

hereby declared unlawful for any land owner, renter or other per- 
son, to deposit in a public road, weeds, trash, garbage or any 
offensive matter, and any person so offending shall be liable to a 
penalty of not less than three dollars nor more than ten dollars; 

>anta insist on their right to remove the fence because they are commissioners of highways, and 
the fence is an obstruction to a public highway, the burden of proving that there is a highway 
at the place where the fence is, is upon them. Mclntyre et al. v. Storey, 80 111. R., 127. 

Tlio act of an individual obstructing a public road, cannot divest the public of its 
rights in respect .to the road, unless submitted to for snch a period of time as to raise a fair pre- 
sumption of abandonment. Power v. Watkms, 58 111. R., 380. 

An overseer of highways is hound to remove obstructions from the highways with- 
in his district, although not specially directed to do so by the commissioners. McFadden t. 
Kinsbury, 11 Wend. R., 667. 

The record of a judgment recovered against a party in a suit by the town 
authorities for obstructing a highway, is not conclusive evidence of the existence of a public 
highway at a point in dispute, in a suit by the owner of land to enjoin such town authorities 
from opening a road over his land at the disputed point. Mclntyre et al. v. Storey, 80 HI. R., 127. 

An appeal will lie from a judgment of a justice of the peace in a proceeding to ra- 
«over a penalty, under § 71 of this act. Town of Partridge v. Snyder, 78 111. R., 519. 

(1) Form of Notice by Owner of Intention to Drain Land* 

To A. B., C. D. and E. F., Commissioners of Highways of the town of 

, county of , and State of Illinois: 

You will take notice that I desire and intend to drain land owned by 
me at {here give location of land] through which a public highway of 
«aid town passes, and for this purpose it will be necessary, and I desire to 
-enter upon said highway and dig a ditch [or as the case may be.] 

Dated this day of , 18—. 

L. M. 
Form of Notice to Owners to Remove Obstruction. 
To A. B. : 

Sir : You are hereby notified that there is an obstruction in the publio 
road, crossing land of which you are the owner, at [give some description 
of the place sufficient to designate it,] consisting of [state the obstruction 
as: a. fallen tree; a fence; a ditch or the like,] and unless you shall re- 
move the same within — days from the date of service of this notice, 

the commissioners of highways of the town of will proceed and 

remove the same at your cost, as provided by law. 

Dated this day of , 18—. 

C. D., ) Commissioners of High- 
E. F., V ways of the Town 
G.H.J of . 

The provision of section 71 of the road law of 1883, that " the commissioners, after having given 
reasonable notice, etc., may remove any such fence or other obstruction," etc., is intended to im- 
pose on the commissioners the imperative duly of removing obstructions from the public highway. 
The word " may " in that section is to be construed as " shall.'' 

While it is the imperative duty of commissioners of highways to remove obstructions placed on a 
public highway, they have a discretion as to the length in time of the notice they may first give to 
the offending party to remove the same. It is as much their duty to exercise this incidental dis- 
cretion for the public good, by determining what is a reasonable notice in the particular case, and 
"by giving it, as it is to remove the obstruction from the road. Brokaw v. Highway Commissioner* 
of Bloomington tp., 130 111. 482. 



198 ROADS AND BRIDGES. [DIV. IL 

but this shall not apply where proper deposits may be made in 
good faith and in a proper manner to repair the roads. 

73. Destroying or injuring sidewalks, etc.— Penalties.] § 73. 

If any person shall purposely destroy or injure any sidewalk, 
public bridge, culvert or causeway, or remove any of the timber 
or plank thereof, or obstruct the same, he shall forfeit a sum not 
less than three nor more than one hundred dollars, and shall be 
liable for all damages occasioned thereby, and all necessary costs 
for rebuilding or repairing the same. 

74. Suits for recovery of fines and penalties, and on contracts.] 

§ 74. All suits for the recovery of any fine or penalty under this 
act, shall be brought in the name of the town in which the offense 
is committed, before any justice of the peace or police magistrate 
within the town, who shall have jurisdiction in such cases to the 
extent of their jurisdiction in other cases: Provided, that all suits for 
fines and penalties, incurred under this act, on town and county line 
roads, shall be brought in the name of the town to which that part of 
the road shall have been alloted, before any justice of the peace or 
police magistrate who shall have jurisdiction in such cases to the extent 
of their jurisdiction in other cases; and it shall be the duty of the 
commissioners to seasonably prosecute for all fines and penalties under 
this act; but in case of a failure of said officers to so prosecute, com- 
plaint may be made by any person: Provided, said persons shall, before 
bringing suit in the name of the town, give a bond for costs, as is pro- 
vided for in the case of non-residents. But whenever any person shall 
enter complaint to any commissioner, it shall be the duty of such com- 
missioner to at once proceed to investigate as to the reasons of such 
complaint, and if such complaint is found to be just, he shall at once 
proceed to prosecution : Provided, further, tliat the com missioned 
may sue and be sued on all contracts entered into by them for the 
construction and repairing of roads and bridges, and the judg- 
ment in any such case against the commissioners shall be a town 
charge. (1) 

(1). The form of bond for costs, after naming the plaintiff and defendant 
in the suit " before A. B., justice of the peace," may be this: " I, D. C, enter 
myself surety for all costs that may accrue in said cause." 

Dated this. etc. (Signed.) 

The provision In regard to security for costs must be observed. It cannot be dis- 
pensed with. Seward v. Wilson, 1 Scam R., l'Jo. 

Suits for tlie recovery of lines and penalties under the above section may be brought 
and prosecuted in the manner of an ordinary civil action between individuals for a money de- 
mand. Ehvbanks v. Ashley, 36 111. R., 177. The complaint is not required to be in writing op 
under oath. The summons may be in the general form prescribed by the statute on this sub- 
ject. See Haines' Treatise, new ed., title "Proceedings in cases of fines, penalties and for- 
feitures," p. 882, where full instructions are given for bringing suits in such cases. 



DIY. H.] LAW OF THE ROAD — REGULATIONS AND PENALTIES. 1^9 

75. Fines paid into treasury of town commissioners.] § 75. 

All fines recovered under the provisions of this act, unless other- 
wise provided, shall be paid over to the treasurer of the commis- 
sioners of the town where the offense is committed, to be ex- 
pended upon the roads and bridges in the town. 

76. Cattle crossings under roads.] § 76. Any person owning, 
using or occupying lands on both sides of any public highway, 
shall be entitled to the privilege of making a crossing uuder said 
highway for the purpose of letting his cattle and other domestic 
animals cross said road : Provided, said person shall erect, at his 
own expense, a good and substantial bridge, with good railings 
on each side thereof, and build an embankment, of easy grade, 
on either side of said bridge; said bridge to be not less than six- 
teen feet wide, and to be approved by the commissioners of the 
town in which said bridge is built, and the same to be kept con- 
stantly in good repair by the owner or occupant of said land, the 
construction subject always to the consent and approval of the 
commissioners of said town : And, provided, further, that in case 
such crossing is made on any water-way or natural channel for 
water, and where a culvert or bridge is maintained as required 
for road purposes, said owners or occupants shall not be required 
to pay for or construct any more of said crossing than the addi- 
tional cost of such crossing over and above the necessary cost of 
a suitable culvert or bridge for road purposes at such place. (1) 

77. Right of the road— Penalty.] § 77. Whenever any per- 
sons, traveling with any carriages, shall meet on any turnpike, 
road or public highway, in this State, the persons so meeting 

(1) It Is proper that the consent and approval of t h > commissioners in regard to the 
construction of a bridge over a crossing should be rednctd to vriting. This will avoid questions 
that might otherwise arise. The following may be the foimo such consent: 

Form of Consent of Commissioners of Highways for Making Crossing 

Under Highway. 
State of Illinois, 

Board of Commissioners of Highways. 



Illinois, 1 
-County, Y\ 
f J 



Town of- 

We, the commissioners of highways of the town of , do consent to 

the erection of a bridge, by G. H., on the highway at [state the place 
where with reasonable certainty] so as to afford a crossing of said highway, 
subject to be kept constantly in good repair by him as required by law. 

Witness our hands, this day of , 18 — . 

A. B.,1 Commissioners 
of 
Highways. 

The approval of the bridge by the commissioners may be indorsed on or attached to the 
writing or consent in the following form : 

'We, the commissioners of highways, do approve of the bridge built in 
pursuance of the within written consent." 

[To be signed by the commissioners.] 



C D.',' \ 
E. F.,J 



200 ROADS AND BRIDGES. [DIV. H, 

shall seasonably turn their carriages to the right of the beaten 
track, so as to permit each carriage to pass without interfering or 
interrupting, under the penalty of five dollars for every neglect 
or offense, to be recovered by the party aggrieved : Provided, this 
section shall not be construed to apply to a case where it is im- 
practicable from the nature of the ground for the driver of the 
carriage or wagon to turn to the right of the beaten track.(l) 

78. Drunken drivers— Penalties.] § 78. No person owning 
any carriage, running or traveling upon any road in this State for 
the conveyance of passengers, shall knowingly employ, or con- 
tinue in employment, any person to drive such carriage who is 
addicted to drunkenness or the excessive use of spirituous liquors; 
and if any such owner shall violate the provisions of this section, 
he shall forfeit at the rate of five dollars per day for all the time 
he shall keep such driver in his employment. Any person driv- 
ing his own team, or the team of another, on the public highway, 
when intoxicated, shall be subject to a fine of not less than three 
dollars, nor more than twenty-five dollars, for each offense.(2) 

REPEAL OP OTHER ACTS. 
79. Repeal ot act 1879 — saving clause. 

79. Repeal— Saving clause.] § 79. That an act entitled "An 
act in regard to roads and bridges in counties under township 
organization," approved May 28, 1879, in force July 1, 1879, and 
all other acts or parts of acts inconsistent herewith, be and the 
same are hereby repealed: Provided, that the repeal of said act 
shall not affect any suit or proceedings pending. 

(1) The law of the road requiring travelers meeting each other on the highway to 
turn to the right of the middle of the traveled part of the road, prescribes a general rule to 
avoid injuries, but does not undertake to define fully the duties of travelers under all possible 
circumstances. The statute will not justify a man who remains stubbornly and doegedly upon 
the right of the traveled part of the highway, and thereby wantonly produces a collision, when 
a slight change of position would have prevented it. O'Maley v. Dorn, 7 Wis. R., 236. 

Nor does the law requiring travelers seasonably to drive to the right, apply where one vehicle 
is passing along one street, and another is turning into it from a cross road. Lovcjoy v. Dolan, 
10 Cush. R., (Mass.) 495. 

The rule only applies to, and regulates the conduct of travelers as between themselves. 
Where a light vehicle can pass with safety to the left of a heavily loaded team, it is their duty 
togivewav and leave the choice to the more unwieldly vehicle. Orier v. Sampson, 27 Penn. 
State R., 183. 

A party having before him the whole road, free from obstructions, and having 

no notice of any carriage behind him in season to stop or change his course, is at liberty to 
travel on any part of the road that he pleases. Foster v. Ooddard, 40 Maine R., 64. 

A high-way is a public -way for the use of the general public, and persons using horses at 
a means of travel have no rights superior to others using different modes of locomotion. Im- 
proved methods are admissible and cannot be excluded if not inconsistent with present methods. 
If one using horses on a highway as a means of locomotion is injured by the act or omission of 
another using a steam locomotive, the question is not one of superior privilege, but whether 
negligence is imputable to some one, and it so, to whom. Macomber v. Nichols, 34 Mich. R., 212.- 

(2) The driver of a private conveyance is the agent of the person who employs him in 
that capacity. Prideaux v. Mineral Point, 43 Wis. R., 613. 



DIV. II.] LABOR SYSTEM. 201 

79a. Obstructing person in highway.] Be it enacted, etc. 
§ 1. That it* any person shall willfully and unnecessarily hinder, 
obstruct or delay, or shall willfully and unnecessarily attempt to delay, 
hinder or obstruct any other person in lawfully driving or traveling 
along or upon any public highway in this state, he shall be deemed guilty 
of a misdemeanor, and on conviction thereof, shall be fined not less than 
ten (10) nor more than twenty-five (25) dollars; and shall also be liable 
for all damages occasioned to any person by reason of a violation of this 
act. [Act approved June 21, 1S95.] 

LABOR SYSTEM. 
Sbctiok. 

80. Petition to adopt the labor system — elections — effect if adopted. 
SI. Lists filed by overseer — delivered by town clerk to commissioners 
— assessments. 

82. Labor to be performed — who are liable. 

83. Taxation — rate — cities and villages. 

84. Assessment rolls prepared by commissioner and filed with town 

clerk. 

85. Town clerk shall deliver copies to overseers. 

86. Overseers shall add omitted names to lists. 

87. Labor on private roads. 

88. Town clerk shall post notices of asses-ments — payment in labor. 

89. Refusal or neglect of duty by commissioners — penalties. 
#0. Appointment of overseers. 

91. Duties of overseers. 

92. Refusal of overseer to serve — vacancy — appointments. 

93. Appointments filed with town clerk. 

94. Penalty for refusing to act as overseer. 

95. Notice to person to work upon the highways. 

96. Commutation of labor in money. 

97. Persons commuting; shall pay within three days after notice to work. 

98. Overseer may require teams. 

99. Labor may be performed by a substitute. 

100. Penalties for idling or interfering with others. 

101. Penalties for refusal or neglect to work or commute. 

102. Complaint to be made of persons in default. 

103. Justice shall summons to appear in five days. 

104. Trial— judgment — costs — execution. 

105. Collection of judgment. 

100. Fines collected set oft against tax. 

107. Acceptance of excuse by overseer no exemption 

. 308. Notice to persons liable to appear and work out tax. 

109. Receipt for taxes paid and credited on books. 

1 lo. Overseer deliver to supervisors assessment lists. 

111. Penalties for refusal or neglect to deliver lists. 

Wl. Three-fourths of road labor worked out or expended before Sep- 

tem 1 ' er. 

.113. Report of overseer to commissioners before annual town meeting. 

1 14. Overseer shall render account of moneys and pay over to successor, 

115. Penalties for failure to render account and pay over balances. 

116. Supervisors shall receive list from overseers and lay before board 

of supervisors. 
317. Delinquent taxes to be levied on lands and collected. 
?18. Compensation of overseers. 
% 19. Commissioners shall certify to county board annual taxes 



202 EOADS AND BRIDGES. [DIV. II, 



120. Town clerk shall furnish to county clerk plats of road districts. 

121. Taxes extended shall designate district. 

122. County and township collectors shall furnish treasurer of commis- 

sioners abstract of road tax due each district. 

123. Treasurer shall pay to overseer taxes according to the abstracts fur- 

nished, upon order properly approved. 

124. Repeat of act of 1879 — saving clause. 

80. Petition for labor system— Town Meeting.] § 80. On 

petition of not less than twenty-five legal voters of any town in 
this State, in counties where tow T nship organization has been or 
may be hereafter adopted, asking to have the proposition to par 
in labor, the district labor and property road tax submitted to 
the legal voters of said town and filed with the town clerk not 
less than fiiteen days before the last Tuesday in August, when it 
is desired to vote thereon at a special town meeting to be held on 
the last Tuesday in August, or not less than fifteen days before 
the annual town meeting, the town clerk shall thereupon call a 
special meeting on the last Tuesday in August, or state in the 
notice of the annual town meeting, as the case may be, that the 
legal voters of such town may vote by ballot for or against the 
payment in labor and property road tax ; and if a majority of all 
the ballots cast are for the payment in labor of the district labor 
and property road tax, then all the following sections of this act 
shall be in force in such town, otherwise they shall not be in 
force in any town in this State : Provided, the vote which may 
be taken under this section shall not affect the last section of this 
act, but the same shall remain in force : Provided, further, any 
town having adopted the labor system may abolish the same, by 
petition and vote, in the same manner as provided for its adop- 
tion in this section. (1) [As amended 1885. 

(1) Form of Petition for Special Town Meeting to Vote on Labor System. 
To the town Clerk of the town of , county of , State of Illinois : 

The undersigned petitioners, who are legal voters of the said town of 

, respe. tfully ask to have the proposition to pay in labor or money 

the district labor and property road tax submitted to the legal voters of 
said town*, at a special town meeting to be called for that purpose, and to 
be held on the last Tuesday in August, 18 — , in pursuance of the statute 
in such case made and provided. 

Dated at »— , this day of , 18 — . 

Form of Petition to Submit Question to Annual Town Meeting. 

Continue the above form to the*, and add in place of the matter thereafter the following: 

"At the annual town meeting to be held on the first Tuesday in April r 
18 — , in pursuance of the statute in such case made and provided." 

The law provides, as will toe seen, that on filing the foregoing petition thetoTfn vlerk 
shall "call a special town meeting " This is understood to mean that the town olerk shall e'wa 
notice of a special town meeting, as in other cases of special town meetings. 



T>IV. n.] LABOR SYSTEM. 203 

81. Lists filed by overseer— Town clerk to deliver— Assess- 
ments.] § 81. The town clerk shall deliver the lists filed by the 
overseers to the commissioners of highways of the town, who 
shall proceed to ascertain, estimate and assess the highway labor 
and road tax to be performed and paid in their town the next 
ensuing year. 

82. Labor to be performed— Who liable.] §82. Every able- 
bodied male inhabitant being above the age of twenty-one years 
and under the age of fifty, (excepting paupers, idiots, lunatics and 
such others as are exempt by law,) shall be required to labor on 
the highways in their respective road districts not less than one 
nor more than three days in each and every year.(l) 

The following may be the form of notice by the town clerk calling special town meeting: 
Form of Notice of Special Town Meeting to Vote on Labor System. 

SPECIAL TOWN MEETING. 

Notice is hereby given that a petition of twenty-five legal voters of the 

town of , in the county of , State of Illinois, has been filed 

with the town clerk of said town, asking to have the proposition to pay 
in labor the district labor and property road tax submitted to the legal 
voters of said town, at a special town meeting to be called for that pur- 
pose, and to be held on the last Tuesday in August, 18 — , a special town 

meeting is therefore called accordingly, and which will be held at , 

on Tuesday, the day of August, 18 — , being the last Tuesday thereof. 

At which the legal voters of said town may vote by ballot for or against 
the payment in labor of the district labor and property road tax ; said 
special town meeting will be called to order between the hours of eight 
and nine o'clock in the forenoon. 

Given under my hand this day of , 18 — . 

A. B.,Town Clerk. 

Notice for special town meeting In this case should be posted in the same manner, and 
the meeting conducted the same, as in other c;ises of special town meetings. 

The law does not prescribe the form of ballots, in this case, but they may be written or 
printed, and may be in the following form: 

"For payment in labor of the district labor and property road tax," or 
"Against payment in labor of the distiict labor and property road tax." 

Form of Notice of Submitting Question at Annual Town Meeting. 

In case a petition la filed asking that the proposition to adopt the labor system be 
submitted at the annual town meeting, the following may be the fo m of a paragraph concern- 
lug the same, to be inserted in the notice of the annual town meeting: 

"To vote upon the proposition to pay in labor the district labor and 
property road tax in said town pursuant to a petition duly filed with the 
town clerk, signed by twenty-five legal voters of said town." 

(1) In the absence of some law to the contrary, it Is held that the township authori- 
ties may control the roH-1 labor of ihe inhabitants of an incorporated city or village situated 
within the townsnip; that an incorporated city or village is apart oi the township within 
which it is situated, and is deemed as much a "part thereof as the township is a part of the 
county; that the town authorities under township organization therefore have the right to im- 
pose and collect a poll tax of all the inhabitatvs of the town, whether residing within or out of 
the city or village. O'Kane v. Treat et al., 25 111. R., 567. 

But where complete jurisdiction Is givt-n to an incorporated city or village in regard 
to the improvement of streets therein, the general road law does not apply, and the township 
authorities have no control in this respect. Fox v. City of Rockjord, 88 111. K., 451. 



204 ROADS AND BRIDGES. DIV. IL] 

83. Taxation— Rate— Cities and villages.] § 83. The com- 
missioners of highways of each town shall annually ascertain, as 
near as practicable, how much money must be raised by tax on 
-real and personal property, and railroad property known as 
"railroad track" and " rolling stock," for the making and repair- 
ing of roads only, to any amount they may deem necessary, not 
exceeding forty cents on each one hundred dollars worth, as 
equalized and assessed by the State Board of Equalization, for 
the purposes of taxation for the previous year, and shall levy and 
assess the same as a road tax against said property : Provided, 
that the tax on the property levied for road purposes only, lying 
within an incorporated village, town or city in which the streets 
and alleys are under the care of the corporation, shall be paid 
over to the treasurer of such village, town or city, to be appro- 
priated to the improvement of roads, streets and bridges, either 
within or without said village, town or city, and within the town- 
ship, under the direction of the corporate authorities of such vil- 
lage, town or city: Provided, further, that when any of said tax 
is expended beyond the limits of said village, town or city, it shall 
be with the consent of the road commissioners of the town: 
And, provided, further, that the authorities of such incorporated 
town, city or village may, at any time, direct the collector not to 
collect the tax so levied within the limits of such incorporated 
town, city or village.(l) 

84. Assessment rolls prepared by commissioners — Filed with 
town clerk.] § 84. The commissioners of highways shall affix 

Where the inhabitants assessed a poll tax were required to worlc out the same in 
their respective road districts, where an incorporated village comprised a road district of the 
township, it was held that the inhabitants assessed for road labor in said village could not be 
compelled by the township authorities to work out their poll tax outside of the corporation in 
which they lived, it being a separate road district. Town of Pleasants v. Kost, 29 111. R., 490 

It is competent for the legislature to provide for a poll tax and for compelling pay- 
ment thereof, eitner in labor or monev, and a penalty may be prescribed for non-payment of the 
assessment. Fox v. City of Rockford, 38 111. R„ 451. 

Labor assessed for the repair of roads, commonly called a poll tax, is not a tax within 
the meaning of the Constitution concerning taxation, hence an exemption as to persons in this 
regard is not unconstitutional. Town of Pleasants v. Kost, 29 111. R., 495; Fox v. City of Rockford, 
38 111. R., 451. Such a tax is not a capitation tax. Fox v. City of Rockford, 38 111. R, 451. 

The summoning of the people once a year to put the highways of their neighbor* 
hood in order, is, to some extent at least, in the nature of a police regulation. Cooley on Tax- 
ation, p. 397, and cases cited. 

A poll tax can only he assessed on inhabitants. Herriman v. Stowers, 43 Maine R., 497. 

Trustees of schools, school directors or other school officers performing like duties 
are exempted from road labor. Rev. Stat., 972, g 72. This has reference to poll tax only. See 
McDonald v. Madison County, 43 ill. R..23. Persons enrolled in the actire militia are likewise 
exempt from payment of road labor and poll tax. Laws 1879, p. 197. 

(1) The commissioners have likewise authority to levy a tax for bridges and vari- 
ces other purposes in a subsequent portion of this act. See post, g 119. 

It is the duty of the collector to pay to the treasurer of an incorporated city, villacs 
•r town, that portion of the taxes levied in the town, by the commissioners of highways, on th« 
■taxable property within the city, for road purposes, and if he refuses to pay the same to the city, it 
«anay be collected by suit on his bond. Baird et al. v. The People, use, etc^ 83 111. R., 387. 



DIY. IL] LABOR SYSTEM. 205' 

to the name of each person named in the lists furnished by the 
overseers, the number of days assessed to each person for high- 
way labor, and they shall make a list for each district, containing 
a description of each tract of land in the district, and the name 
of the owner, if known, and the name of the owner of any rail- 
road property known as "railroad track" and "rolling stock," and 
also a list of the names, in alphabetical order, of the personal 
property tax-payers, and shall set opposite each tract of land the 
valuation thereof, as taken from the assessment roll of the previ- 
ous year as equalized by the State Board of Equalization, and 
opposite each tax-payer's name the amount of his personal assess- 
ment on personal property as taken from said roll, and opposite 
the name of each owner of railroad property known as "railroad 
track " and " rolling stock," the valuation thereof, as assessed by 
the State Board of Equalization for the purposes of taxation for 
the previous year, and distributed by the county clerk, and oppo- 
site each valuation and assessment, they shall extend the road 
tax assessed thereon in a separate column. (1) The. lists so pre- 

The act of The commissioners in assessing highway labor and road tax should! 
»e reduced to writing. It may be in the following form: 

Form of Order of Commissioners Assessing Highway Labor and 

Road Tax. 
State of Illinois, ) 

County, \ as. Board of Commissioners of Highwaya. 

Town of J 

At a meeting of the commissioners of highways of the town of , afr 

the town clerk's office, in said town, on the day of , A. D. 18 — , 

the said commissioners having proceeded to ascertain, estimate and assess 
the highway labor and road tax to be performed and paid in said town the 

ensuing year, do estimate and assess days' highway labor to each and 

every male inhabitant in said town, liable to be assessed for highway la- 
bor, to be performed in said town the ensuing year; and having ascertained 
as near as practicable how much money must be raised by tax on real and 
personal property and railroad property known as "railroad track " and 
" rolling stock " for the making and repairing of roads only, do levy and 

assess a road tax of cents on each one hundred dollars worth of real 

and personal property and railroad property known as "railroad track" 
and " rolling stock " liable to taxation of said town against said property, 
as valued on the assessment roll of the past year, to be paid in said town 
the ensuing year. 

Witness our hands this day of A. D. 18—. 

N. P., ") Commissioners 

W. C, [ of 

J. W., J Highways. 

(1) Form of List of Assessment of Highway Labor. 

State of Illinois. 1 

County, Yea. Board of Commissioners of Highways. 

Town of J 

We, the commissioners of highways of the town of , having pro- 
ceeded to ascertain, estimate and assess the highway labor and road tax to 



206 



ROADS AND BRIDGES. 



[DIY. lL 



pared shall be subscribed by the commissioners, and deposited 
with the town clerk, to be filed in his office. 

85. Town clerk deliyer copies to overseers.] § 85. The com- 
missioners shall direct the clerk of the town to make a copy of 
each list, and shall subscribe such copies, after which they shall 



be performed and paid in said town the ensuing year, have made out the 

♦•stiniate and assessment tor road district number in said town, to-wit: 

The inhabitants of said town, assigned to said road district, are assessed 
for highway labor as follows, viz: 



NAMES. 



NO. OF DAYS. 



U.S., 

I. H., 



And the commissioners of highways 

town of to make a copy of this lis 

Subscribed by us, this day of 



do direct the town clerk of said 

t. 



A. D. 18—. 

R. L., ) Commissioners 

E. a., \ »f 

H. P., J Highways. 

Form of Alphabetical List of Personal Property Tax Payers. 



State of Illinois, 

County, 

Town of 



Board of Commissioners of Highways. 



The following comprises the names in alphabetical order of the personal 



Sroperty tax payers in road district number in, 
Opposite to each tax payer's name is the amount of his 
as taken 



the town of 



personal assessment 
from the assessment roll of the previous year, and extended 
against each is the road tax thereon, in a separate column, assessed by the 
commissioners of highways of said town : 



NJLHB OF PERSONAL PROPERTY TAX PAYER. 


AMOUNT OF PERSONAL 

ASSESSMENT. 


AMOUNT OP ROAD TAX 
ASSESSED. 


Adams, Jonathan 
Brooks, William 


$1,000.00 

500.00 


$2.00 
1.00 



And the commissioners of highways do direct the town clerk of said 

town of to make a copy of this list. 

Subscribed by us, this day of , A. D. 



18—. 
R. L., 

E. S., 
H. P., 



") Commissioners 

f of 

) Highways. 



The personal property road tax of an individual, If not paid, should be returned with hi* 
land tax, to be levied upon the land, and collected and paid over to the commissioners the saieae as 
the land tax. See post sections 110 and 117. Where the individual has no land assessed, the rem- 
edy for the recovery of his personal tax is, no doubt, by an action in the name of the town, to b* 
prosecuted in the same manner as ordinary actions ; and this is an appropriate remedy to enforc* 
ihepayment of a tax, without regard to the remedy given by distress. See Ryan y. Qadatin 0»~, 
14 IU. SL, 83; Qlancey v. Elliott, Id., 458; Bunlap v. Gallatin Co., 15 Id., 9. 

Form of List of Land Road Tax Assessment. 

State of Illinois, ) 

County, >-ss. Board of Commissioners of Highways. 

Town of j 

The following is a list containing a description of each tract of land in 
road district number in said town of , and the names of the 



©IT. n.] LABOR SYSTEM. 207 

•cause the several oopies to be delivered to the respective over- 
seers of highways of the several districts in which the highway 
labor is assessed. One copy for each overseer shall contain thd 
name and number of days assessed to each parson, the other, the 
real and personal property road tax. 

86. Overseers to add names to lists.] § 86. It shall be the 
duty of the overseers to add the names of persons left out of any 
such list, and of new inhabitants, and to rate the persons so 
added in the same proportion to work on the highways as others 
rated by the commissioners on such list, subject to an appeal to 
the commissioners. 

87. Labor on private roads.] § 87. It shall be the duty of 
the commissioners of highways of each town to credit such per- 
sons as live on private roads and work the same, so much ou 
account of their assessment as such commissioner shall deem 
necessary to work such private road, or to annex such private 
road to some of the highway districts. 

88. Town clerk to post notices of assessments— Payment in 
labor.] § 88. The town clerk shall, within ten days after the 
commissioners of highways have filed in his office the amount of 
road tax assessed on the real and personal estate of the towns, 
post a notice on the outer door of the house where the town 
meeting was last held, and two other public places in said town, 
stating the amount of road tax assessed on each one hundred 

owners thereof, as far as known, and the name of the owner as far as 
known of railroad property known as "railroad track" and "rolling 
stock," with the valuation thereof set opposite each tract, as taken from 
the assessment roll of the previous year, and opposite the name of each 
owner of railroad property known as "railroad track" and "rolling 
stock " the valuation thereof as assessed by the State Board of Equaliza- 
tion for the purpose of taxation for the previous year; opposite each valua- 
tion and assessment is extended the road tax assessed thereon in a separate 
column : 



IAXI OF OWHBL 


DESCRIPTION OF LAND. 


HO. 

ACHES. 


VALUE 
PEK ACRE. 


TOTAL 
VALUE. 


AMOUNT 
TAX. 


H.S. 

s. c. 


N. W. \i Sec. 11 
8. W. g " " 


160 

160 


$20.00 
20.00 


83,200.00 
3,200.00 


€6.40 

6. -10 



And the commissioners of highways do direct the town clerk of said 
town of to make a copy of this list. 

Subscribed by us, this day of , A. D. 18 — . 

R. L.,) Commissioners 
E. S., \ of 

H. P., J Highways 

The law requires, as will be seen, (? 84 of this act), that the commissioners shall make a list »f 
the personal property tax payers for each road district in alphabetical order. This will require 
that the names of persons who are assessed for personal property shall be comprised in such list, 
although they may be also assessed for real estate, whence it follows that there should be two sep- 
arate lists, one showing the names of all persons having personal property assessed and the other 
comprising the real estate tax, with the names of the owners, if known. 



208 ROADS AND BRIDGES. [or?. H 

dollars' worth of real and personal estate of the town, and that 
persons interested can pay the same in labor on the highways 
under the direction of the overseer of highways in the district 
where the land or personal property is situated. (1) 

89. Refusal or neglect of duty by commissioners— Penalties.] 
§ 89. If the commissioners of highways snail re i use or neglect 
to perform any of the duties enjoined on them by this act, they 
shall severally forfeit not less than ten dollars, nor more than 
fifty dollars, and may be proceeded against, severally or jointly, 
for the recovery of such forfeiture before any justice of the peace 
in the proper county having jurisdiction. 

90. Appointment of overseers.] § 90. The commissioners of 
highways in each town shall appoint as many overseers of high- 
ways as there are road districts in the town; and each overseer of 
highways so chosen shall be a resident of the road district for 
which he is appointed, and shall hold his office for one year. (2) 

91. Duties of overseers.] § 91. It shall be the duty of over- 
seers of highways in each town : 

First — To repair and keep in order the highways within their 
several districts for which they shall have baen appointed. (3) 

Second — To warn all persons from whom road labor is due, to 
work on the highways at such times and places within their 

(1) Form of Notice of Assessment of Property Tax. 

Notice is hereby given that the amount of road tax assessed on each one 

hundred dollars' worth of real and personal estate of the town of , 

in the county of — — , for the ensuiug year, is cents, and that all 

persons interested can pay the same in labor on the highways, under th© 
direction of overseers of highways in the district where the land or per- 
sonal property is situated. H. N., Town Clerk. 

Dated at this day of , 18—. 

(2) Form of Appointment of Overseer of Highways. 
State of Illinois, ] 

County, Vss. Board of Commissioners of Highways. 

Town of J 

We, the commissioners of highways of the town of , do hereby 

. appoint L. M. to be overseer of highways in and for road district No. — ^ 
in said town. 

Given under our hands, this day of , A. D. 18 — . 

A. B., ) Commissioners 

C. D., \ of 

E. F.,J Highways. 

(S) An overseer of highways is bound to remove obstructions from the highways 
within his district, although not specially directed to do so by the commissioners. McFaddcn v. 
Kingsbury, 11 Wend. R., 667. 

The commissioners of highways have power to require the overseers to perform 
labor upon such parts of the highway as in the judgment of the commissioners seems oest fw 
the public good. The overseers are required under penalty to obey the orders and directions o? 
the commissioners, in the repair of highways in their district. Hizet v. lawn qf Eockford, 96 U.L 

fc^sas. 



Dry. n.] LABOR SYSTEM. 209 

several districts, as they may think proper. The overseers of 
highways may contract with persons owing poll tax for road pur- 
poses, to perform a certain amount of labor on any road or bridge 
in their town or road district for the amount of such tax; and if 
the work is done within the time that the money should have 
been paid, the overseer shall give such person a receipt for such 
labor done or performed. (1) 

Third — To collect all fines and commutation money, and to exe- 
cute all lawful orders of the commissioners of highways. 

Fourth — To deliver to the clerk of the town, within ten days 
after their appointment, a list subscribed by such overseers, of 
the names of all the inhabitants in his road district who are liable 
to work on highways. (2) 

92. Refusal of overseer to serve— Vacancy— Appointment] 

§ 92. If any person chosen or appointed to the office of over- 

(1) Tlie law does not require the contract between the overseer and persons owing poll 
tax for road purposes to be in writing. For convenience it may therefore be made verbally. 

Form of Overseer's Receipt for Foil Tax Worked Out by Contract. 

State of Illinois, ) 

County, \ ss. 

Town of . J 

Received of O. B., dollars, in full payment for amount of poll 

tax assessed against him by the commissioners of highways of the town 

of , for the year 18 — ; the same being for work performed by him on 

the highway, in road district No. , in said town, by contract with the 

overseer thereof. 

L. M., Overseer of Highways, District No. — . 

I*abor assessed for highway purposes can only be bestowed upon such roads as are 
established by law. When iands are dedicated by the owner to public use as streets, they do 
not become public highways until accepted as such by the public authorities. Oswego v. Orwcge 
Canal Co., 2 Selden R., 263. 

A highway overseer has no authority to expend money committed to him for the repair of 
highways in changing the line of travel, and constructing a new road outside of that estab- 
lished. Todd v. Rowley, 8 Allen R., (Mass.) 51. But this pi obably does not apply to the case of 
% 6light departure from the established road from necessity to avoid a formidable obstruction. 

It is a question whether, after a road has been laid out, it may be abandoned by mere non- 
user, so as to relieve the town authorities from the duty of keeping it in repair. When a roadia 
used to any extent, although it mny be obstructed by movable bars across it, it will not be con- 
ridered as abandoned. State v. AUUad, 18 N. Hamp. R., 69. 

The overseer is not obliged, nor is he authorized to procure a scraper or plow to use 
•n the highways, without being directed and empowered to do so by the commissioners. M* 
Fadden v. Kingsbury, 11 Wend. R., 667. 

12) Form of Overseer's List of Inhabitants Liable to Work on Highways. 

State of Illinois, ") 

County, f ss. 

Town of . J 

I, J. H., overseer of highways for road district number , in said 

cown of , do certify that the following is a true and correct list of all 

the inhabitants in said road district, who are liable to work on highways, 
fiz. [Here insert the names.] 

Subscribed by said overseer this day of , A. D. 18—. 

J. H., Overseer of Highway* 

U 



210 EOADS AND BRIDGES. [DIV. II. 

seer of highways shall refuse to serve, or if his office shall be- 
come vacant, the commissioners of highways of the town shall, 
by warrant under their hands, appoint some other person in his 
stead; and the overseer so appointed shall have the same powers, 
be subject to the same orders and liable to the same penalties as 
overseers originally appointed.(l) 

93. Appointments filed with town clerk.] § 93. The com- 
missioners making appointment shall cause such warrant to be 
forthwith filed in the office of the town clerk, who shall give 
notice to the person appointed as in other cases.(2) 

94. Penalty for refusing to act.] § 94. Every overseer of 
highways who shall refuse or neglect to perform any of the 
duties hereinbefore enumerated, or which may be lawfully en- 
joined on him by the commissioners of highways of his town, 
shall, for every such refusal or neglect, forfeit the sum of ten 
dollars, to be sued for by the commissioners of highways of the 
town, and when recovered, to be applied by them in making and 
improving the roads and bridges tnerein.(H) 

95. Notice to persons to work on highway.] § 95. It shall be 
the duty of overseers of highways to give at least three days 
notice, either verbally or by leaving a written notice at their place 

(1) Form of Appointment of Overseer of Highways in Case of Vacancy, 

State of Illinois, \ 

County, Vss. Board of Commissioners of Highways. 

Town of , J 

Whereas, a vacancy has occurred in the office of overseer of highways, 

for road district No. , in said town of , by reason of the removal 

[or refusal to serve, or death, as the case may be] of , elected to said 

office. Now, therefore, we, the undersigned commissioners of highways 
of said town, do hereby appoint M. P., to be overseer of highways in and 

for said road district, No, , in said town, to fill said vacancy. 

Given under our hands this day of , A. D. 18—. 

E. M.,) Commissioners 

A.W., V of 

J. B.J Highways. 

(2) Form of Notice to Person Appointed Overseer, 

To 8. M., of the town of , county of , State of Illinois: 

You are hereby notified that on the day of , 18—, the com- 
missioners of highways of said town, by warrant under their hands, ap- 
pointed you as overseer of highways of road district No. , to fill a 

vacancy occurring therein, wnich warrant has been duly filed in my 
office. 

Given under my hand this day of , 18—. 

A. B., Town Clerk. 

(8) An overseer of highways Is not liable to a private action for any error of judg- 
ment in the execution of his trust. He is only responsible for any neglect or refusal under the 
section of the act which subjects him in such a case to a penalty. Freeman v. CornweH, 10 Johns. 
IL, 470. U, however, be a^ts maliciously or oppressively, it is otherwise. 6 Johns. &., 126. 



DIV. IL] IABOR SYSTEM. 211 

of residence, to all persons assessed to work on the highways, 
and residing within limits of their respective districts, of the 
time and place when and where they are to appear for that pur- 
pose, and with what implements; but no person being a resident 
of the town shall be required to work on any highway other than 
in the district in which he resides, except he resides in a district 
on a town line, which district belongs to an opposite town, and 
unless he shall elect to work in same district where he has land; 
and in said case he may, with the approbation of the commis- 
sioners of highways, apply the work assessed in respect to such 
land in the district in which the same is situated : Provided, if 
the overseers of highways fail to perform their duty, the commis- 
sioners of highways shall have power to perform such duties, or 
cause the same to be performed, under such rules as they may 
prescribe. (1) 

96. Commutation of labor in money.] § 96. Every person 
able to work on the highway, shall work the whole number of 
days for which he shall have been assessed; but every such person 
other than an overseer of highways, may elect to commute for 
the same or for any part thereof, at the rate of one dollar per 
day; in which case such commutation money shall be paid to the 
overseer of highways of the district in which the person com- 
muting shall reside, to be applied and expended by such overseer 
in the improvement of the roads and bridges in the same district 

97. Persons commuting— When to pay.] § 97. Any person 
intending to commute for his assessment or any part thereof, 

(1) The provisions of the above section refer to persons assessed to work on 

highways. This relates to poll tax onlv. The time and mode of working out the land and per- 
sonal property tax is prorided by Sec. 108, post 

In case the overseer thinks proper to give writ ten notice to persona assessed to 
work on the highways, the following may be the form of such notice: 

Form of Notice to Person to Work Poll Tax on the Highways. 

To Mr. D. R.: 

Sir : You having been assessed a poll tax of days, to be worked on 

the highway in road district No. , in the town of , are hereby 

notified to appear with [state with what implements'] on the day of 

, 18—, at o'clock in the forenoon, at [state the placed for the 

purpose of working said highway poll tax. 

Dated this day of , A. D. 18—. 

J. S M Overseer of Highways. 

The person assessed a road tax Is not liable nntil he has had notice to work; but he 
may waive the notice either expressly or by acts, from which the waiver may be Inferred. Jfo- 

Donald v. Madison County, 43 111. R., 24. 

The Uwnnderwhlch road labor is assessed does notreqnlre a residence, but simply 

inhabitancy. See Sec. 82, ante; Dale v. Irwin, 78 I1L E n 170. 

The proviso to Sec. 95, contemplates, that if the overseers fail to perform any of their 

duties prescribed in said section, or in the preceding provisions, the commissioners of highways 
shall cause the same to be performed, the object being to place the highways of the town under 
the general supervision of the commissioners, and to ensure the execution of the law. 



212 1J0ADS AND BRIDGES. D1V. II.] 

shall, within three days after he shall be notified to appear and 
work on the highways, pay the commutation money for the work 
required of him by such notice; and the commutation shall not 
be considered as complete until such money be paid. 

98. Overseer may require teams.] § 98. Every overseer of 
highways shall have power to require a team or a cart, wagon or 
plow, with a pair of horses or oxen, and a man to manage them, 
lor any person having the same within his district, who shall 
have been assessed two days or more, and who shall not have 
commuted for his assessment; and the person furnishing the 
same upon such requisition, shall be entitled to a credit of two 
days for each day's service therewith. 

99. Labor performed by substitute.] § 99. Every person 
assessed to work on the highways, and named to work, may ap- 
pear in person, or by an able-bodied man as a substitute, and the 
person or substitute shall actually work eight hours in each day, 
under a penalty of twenty-five cents for every hour such person 
or substitute shall be in default, to be imposed as a fine on the 
person assessed. 

100. Penalty for idling, etc.] § 100. If any person, after 
appearing, remain idle, or not work faithfully, or hinder others 
from working, such offender shall, for every offense, forfeit to the 
town the sum of two dollars. 

101. Penalty for refusal or neglect to work or commute.] , § 
101. Every person so assessed and duly notified, who shall not 
commute, and who shall refuse or neglect to appear as above 
provided, shall forfeit to the town, for every day's refusal or neg- 
lect, the sum of two dollars ($2.00). If he was required to fur- 
nish a team, carriage, man or implement, and shall refuse or neg- 
lect to comply, he shall be fined as follows : 

First — For wholly failing to comply with such requisition, four 
dollars, ($4.00) for each day. 

Second — For omitting to furnish a pair of horses or oxen, one 
dollar and fifty cents ($1.50) for each day. 

Third — For omitting to furnish a man to manage the team, two 
dollars ($2.00) for each day. 

Fourth — For omitting to furnish a wagon, cart or plow, seven- 
ty-five cents (75c) for each day. 

102. Complaint to be made of persons in default] § 102. It 
shall be the duty of every overseer of highways, within six dajs 
after any person assessed and notified shall be guilty of any re- 
fusal or neglect, for which a penalty or fine is prescribed in this 
act, unless a satisfactory excuse shall be rendered to him for such 
refusal or neglect, to make complaint on oath, to any justice of 



[>rr. n.] labor system. 213 

the peace of the county : Provided, if the overseers of highways 
fail to perform their duty, as prescribed in this section, the com- 
missioners of highways shall have power to perform such duties.(l) 

103. Justice to summons.] § 103. The justice to whom such 
complaint shall be made, shall forthwith issue a summons, directed 
to any constable of the county, requiring him to summon such 
delinquent to appear within five days before such justice, accord- 
ing to law, for such refusal or negle^t.(2) 

104. Trial — Judgment— Costs— Execution.] § 104. On the 
day of trial, the justice shall proceed to hear and determine the 
case according to law for the offense complained of, and shall 
forthwith issue an execution under his hand and seal, directed to 
any constable of the county where such delinquent shall reside, 
commanding him to levy such fine, with the costs of the proceed- 
ing, of the goods and chattels of such delinquent. No personal 
property shall be exempt from levy of attachment or execution 
when the judgment is for commutation of road or street labor : 
Provided, the court rendering the judgment shall find that the 
same is for road or street labor, which finding shall be expressed 
on the record of said judgment and indorsed upon the execution 
when issued.(3) 

105. Collection of judgment.] §105. The constable to whom 
such execution shall be delivered, shall forthwith collect the 

(1) This complaint need, not necessarily be in writing; it will be sufficient compli- 
ance with the law if made on oath, in which case the complaint may be recited in the summons. 
The complaint of the overseer will be presumed to be true until the contrary appears. The jus- 
tice must proceed upon it as such, and if the proceedings prove to be unauthorized, the overseer is 
liable. 9 Johns. R , 229. 

In a snit to recover the penalty provided by statute for a neglect or refusal to work 
upon a road, upon notice by the overseer, evidence that the place where the defendant was re- 
quired to work is not a highway, is inadmissible. Reynolds v. Town of Foster, 89 111. B., 257. 



(2) Form of Summons for Ref using to Work. 



State of Illinois 



Cou 



nty,f M " 



The People of the State of Illinois to any constable of said county, greet- 
ing: 
You are hereby commanded to summon A. B. to appear before me al 

, on the day of , 18 — , at o'clock, — M., to answer the 

complaint of C. D., overseer of highways of district No. , in the town 

of , in said county, on oath, for a failure to pay a certain demand, 

not exceeding two hundred dollars, incurred as a fine, and hereof make 
due return as the law directs. 

Given under my hand this day of , 18—. 

8. O., [SEAL.] 
Justice of the Peace. 

fS) In proceedings under tne above section the suit will be the same as between La<*i- 
▼iduals for an ordinary money demand. The town should be entered as plaintiff by name, nod 
the person proceeded against as defendant. Ewbanks t. Ashley, 36 111. R., 177 ; Jacksonville v. Block, 
86 111.^507. See ante, I 74 



214 ROADS AND BRIDGES. [DIV. CL 

moneys therein mentioned. He shall pay the fine, when collected, 
to the justice of the peace who issued the execution, who is here- 
by required to pay the same to the overseer who entered the com- 
plaint, to be by him expended in improving the roads and bridges 
in the district of which he is overseer. 

106. Fines set off against tax.] § 106. Every fine collected 
for refusal or neglect to appear and work on the highways, shall 
be set off against his assessments or personal labor tax, upon 
which it was founded, estimating every two dollars collected, as a 
satisfaction of one day's work. 

107. Acceptance of excuse no exemption.] §107. The accept- 
ance by an overseer of any excuse for refusal or neglect, shall 
not in any case exempt the person excused from comnluting for 
or working the whole number of days for which he shall have 
been assessed during the year. 

108. Notice to appear and work out tax.] § 108. Every over- 
seer of highways shall give at least three days notice to each per- 
son residing in his district against whom a land, railroad property 
or personal property road tax is assessed, either personal or in 
writing, left at his usual place of abode, of the time when and the 
place where he may appear and pay his road taxes in labor, and 
with what implements; and he may require of all persons appear- 
ing to pay their taxes in labor to furnish a spade, shovel, axe or 
hoe, and if any such person be the owner of a team, plow, wagon, 
cart or other implement useful for working the highways, he may 
require such person to furnish any of them if his road taxes are 
not less than three dollars. And every such person may appear 
at the time and place and with such implements and teams as the 
overseer in his notice shall have required, and work in person or 
by an able-bodied substitute; and every such person who shall so 
appear and work agreeable to the directions of such overseer of 
the highways in his district, shall be credited on his road tax one 
dollar and twenty-five cents for every day he shall actually work 
eight hours and at that rate for less time, and twenty-five cents a 
day for every wagon or plow, and one dollar a day for each yoke of 

Form of Docket Entry. 

[Proceed in the usual form of money demand in debt or assumpsit, add- 
ing the following:] 

44 And the court doth find that said demand is for road labor due from 
said defendant, whereupon it is considered by the court," etc. 

The execution may be in the general form prescribed by statute. See Haines 1 Tkbatisk, title 
" Execution," having the finding oi the Court as expressed on the record of the judgment endorsed 
(hereon. 



TKe law pro-riding for stilt to recover a penalty for neglect or refusal to work upo» 
road, is constitutional. Jurisdiction is especially conferred upoo justices or la* peace in cases of 
rmplaint under this section. Reynolds v. Town of Foster, 89 111. R., 257. 



DIT. H.J LABOR SYSTEM. 215 

oxen and one dollar and twenty-five cents a day for each span of 
horses or mules lie shall furnish agreeably to the requirements of 
said overseer : Provided, that any person may elect to pay such 
tax to the overseer in money : Provided, further, if the overseers 
of highways fail to perform their duty, the commissioners of 
highways shall have power to perform such duties, or cause the 
same to be performed under such rules as they may prescribe. (1) 

109. Receipts for taxes paid and credited.] § 109. It shall 
be the duty of the overseer of highways, when such land or rail- 
road property tax has been paid either in money or labor, to writ* 
the word "paid" distinctly against each name or tract on his list, 
on which the same has been paid, and give a receipt for the same, 
whether paid in labor or money, when demanded. 

110. Overseer deliver to supervisors assessment lists.] § 110. 
Every overseer of highways shall deliver to the supervisor of his 
town, and in Cook county to the county board, at least five days 
previous to the annual meeting of the board of supervisors, the 
lists furnished by the commissioners of highways, containing the 
land and personal property road tax, with an affidavit thereto, 
sworn to before the supervisor of the town, or some justice of the 
peace of the county, that on all tracts of land or railroad prop- 
erty on such list opposite which the word " paid " is written, such 
tax is paid, and that on all tracts of land or railroad property on 
such list opposite which the word " paid " is not written, such tax 
is due and remains unpaid, according to the best of his knowledge 
and belief. (2) 

111. Penalties, refusal or neglect to deliver lists.] § 111. If 

any overseer shall refuse or neglect to deliver such list to the 
supervisors as provided in the last preceding section, or shall 

(1) When the overseer of highway* desires to give notice In -writing, to wars 
persons to work oot property tax, the form given for notice in case of poll tax can be used by 
varying to suit the occasion. See onte, Sec 95. In place of the words "a poll tax of — days," ia 
«aid form, insert the words "a property tax of $— ," otherwise the form may be substantially the 



•ame. 



(2) Form of Affidavit of Overseer of Highways upon Return of List to 

Supervisors* 
6tate of Illinois, \ OQ 

County, / 8S - 

J. W., overseer of highways for road district number , in the town 

of , in said county, being duly sworn, doth depose and say, that ou 

all tracts of land or railroad property described in the annexed list, 
opposite which the word "paid" is written, such tax is paid, and that on 
all tracts of land or railroad property on such list opposite which th« 
word "paid" is not written, such tax is due and remains unpaid, accord- 
i rig to the best of his knowledge and belief. J. W. 

Subscribed and sworn to before me, this) 

day of , A. D. 18—. I 

J. L., Justice of the Peace. J 



216 ROADS AND BRIDGES. [DIV. IL 

neglect or refuse to make the affidavit as therein directed, he shall, 
for every such offense, forfeit the sum of five dollars, and also the 
amount of taxes remaining unpaid, to be recovered by the com- 
missioners of highways of the town, to be applied by them in im- 
proving the roads and bridges of such town. 

112. Three-fourths labor worked out before September.] § 

112. It shall be the duty of every overseer of highways to have 
at least three-fourths of the road labor assessed in his district, 
worked out or actually expended on the highways, previous to the 
first day of September in every year. 

113. Report of overseer before annual town meeting.] § 113* 

Every overseer of highways shall, on the second Tuesday next 
preceding the time of holding the annual town meeting in his 
town, within the year for which he is elected or appointed, render, 
under oath, to one of the commissioners of highways of the town, 
an account in writing, containing: 

First — The names of all persons assessed to work on the high- 
ways in the district to which he is overseer. 

Second — The names of all those who have actually worked on 
the highways, with the number of days they have actually worked. 

Third — The names of all those who have been fined, and the 
sums in which they have been fined. 

Fourth — The names of all those who have commuted, and the 
manner in which the moneys arising from fines and commutations 
have been expended by him. 

Fifth — The amount of uncollected road tax which he has re- 
turned to the supervisors of the town, as required in section one 
hundred and ten of this act.(l) 

114. Overseers to render account and pay over money.] § 114 

Every such overseer shall also, then and there, render an account, 

(1) Form of Overseer 1 * Annual Account. 

State of Illinois, 

Com 

Town of- 



>is, ) 
inty, V 



I, L. G., overseer of highways for road district No. , in the town 

of , hereby render to the commissioners of highways of said town, 

the following account, to-wit: 

1st. The names of all persons assessed to work on the highways in said 
district, are as follows : 

[Here insert the names."] 

2d. The names of all those who have actually worked on the highways, 
with the number of days they have actually worked, are as follows: 

Names. | No. of Days. 

W. P., 
O.O., 



I>n\ II. J LABOR SYSTEM. 217 

iti writing, of all moneys in his hands by virtue of his office, and 
shall also pay over the same to his successor in office. 
115. Penalties for failure to render account.] § 115. If any 

overseer shall refuse or neglect to render such account, or if, 
having rendered the same, he shall refuse or neglect to pay any 
balance which may then be due from him, he shall, for every such 
offense, forfeit the sum of five dollars, to be recovered with the 
balance of the moneys remaining in his hands, by the commis- 
sioners of highways of the town, and to be applied in making and 
improving the roads and bridges. It shall be the duty of the 
commissioners to prosecute for such penalty in every instance of 
such refusal or neglect. 

110. Supervisors receive lists from overseers, and lay before 
board.] § 116. It shall be the duty of the supervisors of the 
several towns to receive the list of the overseers of highways 
when delivered, pursuant to section one hundred and ten of this 
act. and to lay the same before the board of supervisors of the 
county. 

117. Delinquent taxes to be levied on lands and collected.] 

§ 117. It shall be the duty of the board of supervisors, and in 
Cook county, the county board, to cause the amount of arrearages 
of the road tax returned by the overseer of highways, to the 

3d. The names of all those who have been fined, and the sums in which 
they have been fined are as follows : 

Names. | Am'tofFine. 

J. D., | $3 | 00 

4th. The names of all those who have commuted, and the manner in 
which the money arising from fines and commutations have been ex- 
pended by me, are as follows: 

Names of persons commuting. | Amount. 

O. G., | $1 | 25 

I have received for fines and commutations as above set forth, the sum 

of $ , of which amount I have expended the sum of $ in [here 

&t ate how the money has been expended], and no moneys remain in my 
hands unexpeuded [or the sum of $ remains in my hands unex- 
pended.] 

5th. The amount of uncollected road tax which I have returned to the 

supervisor of the town as required by law, is dollars. 

L. G., 
Overseer of Highways of District No. . 

Dated this day of , 18—. 

L. G., overseer of highways of district No. , in said town of , 

who has subscribed the foregoing account, being duly sworn, says that 

the statements in said account are true as therein set forth. 

Subscribed and sworn to before me, this) L. G. 

day of , A. D. 18—. \ 

A. T., Justice of the Peace. J 



218 ROADS AND BRIDGES. [DIV. IL 

supervisors, as provided in section one hundred and ten of thia 
act, to be levied on the lands returned, and to be collected in the 
same manner that other taxes of the county are levied and col- 
lected, and to order the same, when collected, to be paid over to 
the commissioners of highways of the town, except such portion 
of such tax as is hereinbefore directed to be paid to the authori- 
ties of incorporated villages, towns and cities, to be by them ap- 
plied to the construction of roads and bridges.(l) 

118. Compensation of Overseers.] § 118. Each and every 
overseer of highways, shall be entitled to one dollar and twenty- 
five cents ($ 1.25) per day for every day he is necessarily employed 
in the execution of the duties of overseer, exceeding the amount 
of his highway labor and road tax, the number of days to be ac- 
counted to and audited by the commissioners of highway : Pro- 
vided, that the number of days to be audited shall be left discre- 
tionary with the commissioners of highways. 

119. Commissioners certify to county board annual taxes 
necessary for repairs, etc.] § 119. The highway commissioners of 
each town shall, annually, ascertain as near as practicable, how 
much money must be raised by tax on real, personal and railroad 
property, for the making and repairing of bridges, the payment 
of damages by reason of the opening, altering and laying out of 
new roads and ditches, the purchase of the necessary tools, im- 
plements and machinery for working roads, the purchase of the 
necessary material for building or repairing or draining roads 
and bridges, the pay of the overseer of highways during the en- 
suing year, and for the payment of all outstanding orders drawn 
by the commissioners on their treasurer, commencing on Tuesday 
next preceding the annual meeting of the county board in Sep- 
tember, which tax shall be extended on the tax books, according 
to the assessment of the current year; and shall levy a tax on all 
the real, personal and railroad property in said town, not exceed- 
ing forty cents on the one hundred dollars; and they shall give to 
the supervisor of the township, and in Cook county to the county 
board, a statement of the amount necessary to be raised, and the 
rate per cent, of taxation, signed by said commissioners, or a ma- 
jority of them, on or before the Tuesday next preceding the an- 
nual September meeting of the board of supervisors, or the 
county board of Cook county, who shall cause the same to be 
submitted to said board for their action at such September meet- 
ing of said board; Provided, that if the commissioners of high- 
ways, or any three legal voters, shall give notice by posting notice* 

(1) The tax authorized by this section (§ 119) is a distinct tax and not the same tax that is author 
ized by § 83 (see p. 204, ante.) 



DIV. H.] LABOR SYSTEM. 219 

in at least three of the most public places of the town, at least ten 
days before the annual towu meeting, that a larger amount of 
money will be required for the purpose of constructing or re- 
pairing roads or bridges in their town than can be realized from 
the real, personal and railroad property tax authorized by law to 
be assessed by the commissioners, the legal voters present at such 
meeting may authorize an additional amount to be raised by tax, 
not exceeding forty cents on each one hundred dollars valuation, 
and said board shall cause the same to be extended on the tax 
books. (1) 

(1) It is proper that the action of the commissioners of highways in ascertaining the 
Amount of raonev to be raisrd in the town by taxation for bridges and other purposes, should be 
reduced to writing, and placed on file, and preserved by their clerk. The following may be the 
form of their determination: 

Form of Tax Levy by Commissioners for Bridges and other Purposes. 

State of Illinois, \ 

County, [-ss. Board of Commissioners of Highways. 

Town of J 

The commissioners of highways of said town of having pro- 
ceeded to ascertain, as near as practicable, how much money must be 
raised by tax on real, personal and railroad property in said town for the 
purposes following, iKir.iiig the ensuing year, a» required by law, have 
ascertained and determined the same to be as follows, to wit: 

1. For the making and repairing of bridges $200.00 

2. For the payment of damages by reason of the opening, altering 

and laying out of new roads and ditches 300.00 

3. For the purchase of necessary tools, implements aud machinery 

for working roads 800.00 

4. For the purchase of the necessary material for building, repair- 

ing and draining roads, and bridges - 100.00 

5. For the pay of overseers of highways during the ensuing year 200.00 
6w For the payment of all outstanding orders drawn by the com- 
missioners on their treasurer 1000.00 

$2,600.00 
Commencing on Tuesday next preceding the annual meeting of the 
county board in fieptember. 

The total amount for purposes aforesaid being twenty-six hundred dol- 
lars. For raising which amount a tax is levied on all the real, personal 
and railroad property in said town, of cents on the one hundred dol- 
lars. 

Witness our hands, this day of , 18 — . 

R. L. f ) Commission en 
E. S., \ of 

H. P., J Highways. 

Form of Statement of Tax Levy by Commissioners to Give to Supervisor. 

State of Illinois, ] 

County, Vss. Board of Commissioners of Highways. 

Town of J 

To the supervisor of said town of : 

The commissioners of highways of said town have ascertained and 
determined that the total amount of money necessary to be raised by ta* 



220 KOAUS AND BRIDGES. DIV. IL] 

120. Town clerk furnish plats of road districts.] § 120. The 
town clerk of each town shall, on or before the first day of Sep- 
tember next, and annually, thereafter, (if the boundary line be 
changed,) furnish to the county clerk a certified plat of the several 
road districts of his town. 



on the real, personal and railroad property of the town of , in the 

county aforesaid, the ensuing year, commencing on Tuesday next preced- 
ing the annual town meeting, 18 — , for the following purposes is as fol- 
lows, to wit: 

For the making and repairing of bridges $200.00 

For the payment of damages by reason of the opening, altering and 

laying out of new roads and ditches 300.00 

For the purchase of the necessary tools, implements and machinery 

for working roads 800.00 

For the purchase of the necessary material for building, repairing 

and draining roads, and bridges 100.00 

For the pay of overseers of highways during the ensuing year 200.00 

For the payment of all outstanding orders drawn by the commis- 
sioners on their treasurer « -1000.00 

$2,600.00 
Commencing on Tuesday next preceding th« annual September meet- 
ing of the board of supervisors, 18 — . 

Making the total amount of money for bridges and other purposes as 
above specified and enumerated twenty-six hundred dollars, for raising 
which amount a tax has been levied on all the real, personal and railroad 

property in said town, of cents on the one hundred dollars. 

Witness our hands, this day of , 18—. 

G. H., ) Commissioners 
of 
Highways. 

A. tax for constructing and repairing roads, bridges and causeways to the extent al- 
lowed by law, may be levied by direction of the electors at town meeting. See Township Org'n 
Act, Mt. 1. Art. IV., § 8. 

The commissioners of highways are required carefully to estimate the sum 

necessary to be expended in their township for bridges and other purposes mentioned for the ensu- 
ing year, and to levy the same if it does not exceed forty cents on the 8100 worth of taxable prop- 
erty, and return the same to the county clerk on or before the Tuesday next preceeding the annual 
meeting of the board of supervisors in September. They are limited to what will be required for 
the ensuing year. Gom'rs of Highways v. Newell, 80 111. R., 587. 

The commissioners of highways have no power to incur indebtedness for road 

and bridge purposes, in any fiscal year, beyond the amount of the taxes already levied for that 
year. In other words, they can in no one year expend lawfully more than the tax levied for that 
year. Being powerless to borrow money, they are equally so to contract indebtedness, except that 
they may have such work done and repairs made, and give orders on their treasurer to the extent 
and not beyond the amount of the tax already actually levied by them. After this levy is made 
they may incur indebtedness in the discharge of their duties before its collection. Commissioners 
of Highways v. Newell, 80 111. R., 581. 

The commissioners have no authority to expend money on roads and bridges, in 
their towns or districts, which is not in the treasury, or which is not actually pro* ided for by a 
levy. They cannot anticipate a tax to be afterwards levied, and the annual revenue of one year 
must be devoted to the wants of that year. Brauns v. The Town of Peoria, 82 m. R. f IL 



i.jT 

G. M., J 



The tax which the commissioners of highways are authorized to levy, not ex- 
ceeding 40 cents on the #100, under g 83 ante, is payable in labor on the highways, while thai 
authorized under g 119 is a money tax, to be collected as other taxes. Mee et al. v. Paddock et aL, 83 
111. R., 494. 

The commissioners cannot levy a tax exceeding 40 cents on each $100 valuation of 
-property, except authorized bv a vote of the people of the town, and if they attempt to do so the 
excess may be enjoined. Mee it aL v. Paddock et aL, 83 ni. B., 494. 



DrV. II. J LABOR SYSTEM. 221) 

121. Taxes extended shall designate districts.] § 121. In all 

counties acting under township organization, the county clerk, in 
extending district road tax upon the tax books, shall designate to 
what district said tax belongs. 

122. County and township collectors furnish abstract of road 
tax.j § 122. It shall be the duty of county and township col- 
lectors to make out an abstract of the amount of district road 
tax due to each district of the respective townships, and deliver 
the same to the treasurer of the commissioners of highways. 

123. Treasurer to pay to overseer taxes according to abstracts.] 

§ 123. The treasurer of the commissioners of highways shall 
pay over the district road tax according to the abstracts as furn- 
ished above, upon the written orders of the various overseers of 
roads for work done in their respective districts, when said 
orders are approved in writing by a majority of said commis- 
sioners.^) 

124. Repeal— Saving clause.] § 124 That an act entitled 
"An act in regard to roads and bridges in counties under town- 

Forrn of Notice for Voting at Town Meeting on Larger Tax for Highway 

Purposes. 

HIGHWAY TAX NOTICE. 

Notice is hereby given that a larger amount of money will be required 
for the purpose of constructing [or repairing, or as the case may be,] 

roads, [or bridges, or as the case may be,] in the town of than can 

be realized from the real, persoual and railroad property tax authorized 
by law to be assessed by the commissioners of highways. And that the 
question of authorizing an additional tax for the purposes aforesaid will 
be submitted to the legal voters of said town at the next annual town 
meeting. 

Dated this day of . 18—. 

R. L., ) Commissioners 
E. S., [ of 

H.P.J Highways. 
Or which notice may be signed by three legal voters. 

In case an additional highway tax is voted at town meeting, the town clerk should 
take s certificate thereof aa in other cases of taxes voted, which it is proper he should deliver to 
' :m era of highways, whose duty it is to deliver the same to the supervisor. 



(1) Form of Overseer 1 % Order on Highway Treasurer. 

Town of . Koad District No. . 

The treasurer of commissioners of highways of said town of , 

will pay to A. B., overseer of said road district No. , the sum of 

dollars and cents, being the amount of district road tax in the 

hands of said treasurer, belonging to said road district, assessed for the 
year 18 — . 
Approved by a majority of the commissioners of highways of said town. 

C. D., ) Commissioner* 
E. F., ) of Highway*. 
L. M., Overseer of Highway*. 



222 ROADS AND BRIDGES. [DIV. II. 

ship organization," approved May 28, 1879, and all other acts or. parts 
of acts inconsistent herewith, are hereby repealed. 

DESTRUCTION OF NOXIOUS WEEDS. 
[The following act is entitled ' 'An act to amend sections 1 and 2 of 
an act entitled 'An act requiring the destruction of the cockle-burr weed, ' 
•etc., approved May 31, 1879, and by adding thereto sections 3, 4 and 5." 
The title is an awkward misstatement of the fact. The three sections 
of this act are not added to the two sctions of the act of 1879, but are 
those same sections rewritten and enlarged. This act is, in fact, a sub- 
stitute for the act of 1879, and is therefore given in place of that act. 
Properly, its sections should have been numbered 1, 2 and 3.] 

124. Commissioners of highways shall cause to be destroyed, 

etc.] Be it enacted, etc. I 3 [1.] The commissioners of highways in 
their respective towns and the county commissioners in counties not 
under township organization shall annually at the proper season to pre- 
vent the spread of the same, destroy, or cause to be destroyed, all cockle 
burrs, Canadian thistle, Russian thistle and all other kinds of thistles, 
or other noxious weeds, growing brush or plants growing on or upon 
the respective highways within their jurisdiction. 

125. Penalty,] 8 4 [2.] The commissioners of highways of any 
town and the county commissioners of any county not under township 
organization, failing to comply with the provisions of the preceding sec- 
tion of this act, shall be liable to a fine of not less than ten (10) dollars 
nor more than twenty-five (25) dollars for each season in which they neg- 
lect the requirements of this act, to be recovered in any proper form of 
action before any justice of the peace of the county where such neglect 
occurs. 

126. Expense of exterminating.] § 5 [3.] The expense of 
exterminating said weeds from the highways shall be paid from the road 
and bridge fund of the respective townships by the treasurer of the com- 
missioners of highways, or in counties not under township organization 
to the county treasurer thereof, upon the filing with him by the com- 
missioners of highways a sworn itemized statement of the cost and ex- 
penses thereof. Suit for the recovery of the fines herein provided for 
may be prosecuted for in the name of the township or county in which 
the highway or lands lie, and upon the filing of a complaint in writing, 
sworn to before any justice of the peace of said county by a taxpayer 
of the township or county where such highway or lands lie, and such 
fines, when collected, to be paid to the township treasurer of the respec- 
tive townships, or in counties having no township organization, to the 
county treasurer, for the use of the road and bridge fund of such town 
and county. [This act approved June 21, 1895.] 



©IT. IL] HIGHWAYS — RECORD — VACATING. 223 



PLAT OF HIGHWAYS TO BE RECORDED. 

8BCTION. 

[127.] Plat of highways, etc., to be made and recorded. 

[127,] Plat of highways, etc., to be made and recorded.] Rev. 

Stat. ch. 109. § 9. Whenever any highway, road, street, alley, public 
ground, toll road, railroad or canal is laid out, located, 
opened, widened or extended, or the location thereof altered, 
it shall be the duty of the commissioners, authorities, officers, 
persons or corporations, public or private, laying out, locating, 
opening, widening, extending or altering the same, to cause a 
plat thereof showing the width, courses and extent thereof, and 
making such reference to known and established corners or 
monuments that the location thereof may be ascertained to be 
made and recorded in the office of the recorder of the county 
in which the premises taken or used for the same or any part 
thereof are situated, within six months after such highway, 
road, street, alley, public ground, toll road, railroad or canal, is 
laid out, located, opened, widened or extended, or the location 
thereof altered; and when any highway, road, street, alley, 
public ground, toll road, railroad or canal is vacated, the order, 
ordinance or other declaration vacating the same shall be in 
like manner recorded. This act shall not be construed to alter 
or affect any law specifically providing for the recording of any 
such plat, or to require the same to be recorded sooner than is 
so specifically provided ; except that any requirements to record 
such plat in any other place than is provided herein shall not 
excuse the parties from complying with this act Whoever 
shall refuse or neglect to comply with this section shall forfeit 
twenty-five dollars, and the like sum for every month he shall 
continue in such refusal or neglect after conviction therefor, to 
be recovered before any justice of the peace of the county, in 
the name of the county, one-half to the use of the county, and 
the other half to the use of the person complaining. — [R. S., 1845, 
p. 487, § 33. 

EFFECT OF VACATING PROPERTY. 

Section. 
[128.] Rights of adjoining owner. 

[128.] Rights of adjoining owner.] Rev. Stat ch. 145. § 2. 
When any street, alley, lane or highway, or any part thereof, nas 
been or shall be vacated under or by virtue of any act of this State 
or by the order of the city council of any city or trustees of any 
village or town, or by the commissioners of highways, county 
board, or other authority authorized to vacate the same, the lot 
or tract of land immediately adjoining on either side shall extend 



224 ROADS AND BRIDGES. [DIV. EL 



to the central line of snch street, alley, lane or highway or part 
thereof so vacated, unless otherwise specially provided in the act, 
ordinance or order vacating the same, unless in consequence ot 
more of the land for such street, alley, lane or highway having 
been contributed from the land on one side thereof than the 
other, such division is inequitable, in which case the street, 
alley, lane or highway so vacated shall be divided according to 
tne equities of the adjoining owners. [L. 1865, p. 103, § 1. 

RAILROAD TRACKS UPON HIGHWAYS. 
Rey. St, chap. 114, \ 20, gives the following authority concerning railroad corporations. 

Fifth — To construct its railway across, along or upon any stream 
of water, watercourse, street, highway, plank road, turnpike or 
canal, which the route of such railway shall intersect or touch ; 
but such corporation shall restore the stream, watercourse, street, 
highway, plank road and turnpike thus intersected or touched, to 
its former state, or to such state as not necessarily to have im- 
paired its usefulness, and keep such crossing in repair : Provided, 
that in no case shall any railroad company construct a road-bed 
without first constructing the necessary culverts or sluices, as the 
natural lay of the land requires for the necessary drainage thereof. 
Nothing in this act contained shall be construed to authorize the 
erection of any bridge, or any other obstruction, across or over 
any stream navigated by steamboats, at the place where any bridge 
or other obstructions may be proposed to be placed, so as to 
prevent the navigation of such stream ; nor to authorize the con- 
struction of any railroad upon or across any street in any city, or 
incorporated town or village, without the assent of the corporation 
of such city, town or village : Provided, that in case of the con- 
structing of said railway along highways, plank roads, turnpikes 
or canals, such railway shall either first obtain the consent of the 
lawful authorities having control or jurisdiction of the same, or 
condemn the same under the provisions of any eminent domain 
law now or hereafter in force it this state. (1) 

(1) Form, of Consent of Commissioners of Highways to construct Railway 

along Highway. 

Town of / ss * 

Application having been made to the Commissioners of Highways of 
said town of for that purpose, consent is hereby given by said Com- 
missioners to "The Railroad Company " to construct a railway alon^r 

and upon the highway in said town, from to [deceribing the point* 

within which the consent is given to construct the railroad] upon the tenua 
and conditions imposed by the statute in such cases made and provided. 

In witness whereof, we have hereunto set our hands, this day 

of 18 — . A. B., ) Commissioners 

C. D., \ of 

E. F.J Highways. 



DIV. II.1 HARD ROADS. 225 



HARD ROADS. 

*«CTfOK. 

129. Petition for road— notice— election— vote— rate per cent. 

130. Ballots. 

131. Duty of commissioners — tax— donations. 

132. Levy and collection of tax. 

133. Duty of treasurer of commissioners — bond. 

134. Tax collector— duty — commission. 

135. Power of commissioners of highways. 

136. Plans — bids— notice. 

137. Plans and specifications — what to contain. 

138. Commissioners — opening bids — bond — contract. 

139. May reject bids — failure to give bond. 

140. Estimates — payment of contractor. 

141. Record— report — settlement. 

142. Construction of road — material. 

143. Commissioners may take material. 

144. Compensation of commissioners and employees. 

145. Powers of county board in counties not under township organiza- 

tion. 

146. Ballots— election— tax. 

147. Roads to be free. 

148. Surplus funds. 

AN ACT to authorize the construction and maintenance of gravel, rock,macadaro or other hard 
roads. Approved June 18, 1883. In force July 1, 18*3. 

129, Petition for road— Notice— Election— Vote— Rate percent.! 

§ 1. That on the petition of fifty land owners, who are legal 
voters, of any township to the town clerk thereof, in counties 
under township organization, or road districts in counties not 
under township organization, to the county clerk, he shall, when 
giving notice of the time and place for holding the next annual 
town meeting or road district meeting also give notice that a vote 
will be taken at said election for or against levying a tax not to 
exceed one dollar on each one hundred dollars assessed valuation 
of all the taxable property, including railroads, in the township 
or road districts, for the purpose of constructing and maintaining 
gravel, rock, macadam or other hard roads. Said petition shall 
state the location and route of the proposed road or roads, not 
exceeding two; and shall also state the rate per cent., not exceed- 
ing one dollar on each one hundred dollars, and the number of 
years, not exceeding five, for which said tax shall be levied. (1) 

(1) Form of Petition for Construction of Gravel, Rock or Macadam Road. 

To A. B., Town Clerk of the town of , in the county of , and 

State of Illinois: 
The undersigned, land owners, who are legal voters in said town, here- 
by petition you to give notice, when giving notice of the time and place 
of holding the next annual town meeting in said town, that a vote will 

be taken at said election for or against levying a tax at the rate of 

per.cent. on each one hundred dollars assessed valuation of all the taxable 
property, including railroads, in said town, lor the period of years, 

15 



226 KOADS AND BRIDGES. [DIV. EL 

130. Ballots.] § 2. The ballots at said election shall contain 
the following form: "For special tax for gravel, rock, macadam 
or other hard roads," "Against special tax for gravel, rock ma- 
cadam or other hard roads." 

131. Duty of commissioners— tax— donations.] §3. If a ma- 
jority of all the ballots cast at said election shall be in favor of 
said special tax, then it shall be the duty of the commissioners 
of highways of the township or road district to levy a' tax in 
accordance with said vote, and certify the same to the town clerk 
in counties under township organization, or to the district clerk 
in counties not under township organization, as the case may be, 
who shall certify the amount voted to the county clerk, who shall 
cause the same to be extended on the tax books for the current 
year: Provided, that the length of time for which the special 
tax levy shall continue shall not exceed five years, and also the 
road or roads to be improved must be designated in the petition. 
The commissioners may also receive donations in money, labor, 
materials or other valuable things, to aid in the construction of 
said road.(l) 

132. Levy and collection of tax.] §4. The county clerk, when 
making out the tax books for the State and county tax for the 

for the purpose of constructing and maintaining a gravel [or rock, ma- 
cadam or other hard roads] road [or roads not exceeding two], to be 
located as follows: [here state the location and route of the proposed road 
or roads.] 

Bated at , this day of , A. D. 18—. 

[Signed by fifty land owners.] 

The law seems to contemplate that the notice of taking the vote on the question of ft 
tax for constructing roads, will be included in the town clerk's general notice of the annual town 
meeting, which may be set forth in a separate paragraph in the notice, in the following form : 

Form of Notice of Vote to Levy Tax for Gravel and Other Roads. 

Notice is also given that a vote will be taken at said town meeting for 

©r against levying a tax at the rate of per cent, for years, on 

each one hundred dollars of the assessed valuation of all the taxable 
property, including railroads, in said town, for the purpose of construct- 
ing and maintaining a gravel [or as the case may be,] road [or roads], to 
be located as follows : [here give location and route of road as in the peti- 
tion], a petition for that purpose by fifty land owners who are legal voter* 
of mid town having been duly filed with the town clerk. 

(1) Form of Certificate of Levy by Commissioners of Highways. 
State of Illinois, ) 

County, [ ss. Board of Commissioners of Highways. 

Towu of , ) 

It is hereby certified by the commissioners of highways of the town of 
in said county, to the town clerk of said town, that a special tax 



of per cent, for years is levied on each one hundred dollars 

assessed valuation of all the taxable property, including railroads, in said 
town, for the purpose of constructing and maintaining a gravel [or as the 



dis. n.] HARD ROADS. 227 

collector, shall extend the special tax in separate columns against 
each tax-payer's name or taxable property, as other taxes are 
extended, which shall be collected the same as State and county 
taxes, and known as the permanent road fund. 

133. Duty of treasurer of commissioners— Bond.] § 5. The 
treasurer of said commissioners of highways, before receiving 
any of said fund, shall execute a good and sufficient bond, with 
two or more sureties, to be filed with the town clerk, or board of 
highway commissioners in counties not under township organiza- 
tion, for the benefit of the township, or board of highway com- 
missioners in counties not under township organization, in double 
the amount that will probably come into his hands.(l) 

134. Tax collector— Duty— Commission.] §6. The tax, when 
collected, shall be paid to said treasurer as fast as collected, 

case may be,] road [or roads] in said town, to be located at [here state 
location as in petition], in accordance with a vote duly taken at the 

annual town meeting in said town on the day of , 18 — . 

Given under our hands the day of , A. D. 18—. 

A. B., ) Commissioner* 
C. L>., } of 

E.F.J Highway*. 

Form of Certificate by Town Clerk of Amount Voted, 
State of Illinois, 



s, ] 
ity, h 



County, fss. 
Town of - 
To the Coun ty Clerk of county. 

I, A. B., town clerk of the town of , hereby certify that the com- 
missioners of highways of said town have certified to me, in accordance 
with a vote duly taken at the annual town meeting in said town on the 

day of , 18 — , that a special tax ot per cent, for years 

is levied on each one hundred dollars assessed valuation of all the taxable 
property, including railroads, in said town for the purpose of construct- 
ing and maintaining a gravel [or as the case may be,] road [or roads] in 
said town, to be located at [here state location of road as in petition], 
which certificate is filed in my office. 

Dated this day of , A. D. 18—. 

A. B., Town Clerk. 

(1) Form of Bond of Treasurer of Commissioners of Highways to be 
Filed with Town Clerk. 

Know all men by these presents, that we, A. B. as principal and C. D. 

and E. F. as sureties, are held and firmly bound unto the town of , 

in the county of , State of Illinois, for the benefit of said town, in 

the penal sum of [double the amount likely to come into his hands] dollars, 
for the payment of which well and truly to be made, we bind ourselves, 
and our heirs, executors and administrators, jointly, severally and firmly 
by these presents. 

Signed with our hands and sealed with our seals this day of , 

A. D. 18.— 

The condition of this obligation is such that, whereas, a special tax for 
constructing and maintaining a gravel [or as the case may be] road [or 



228 ROADS AND BRIDGES. DIY. II.] 

except such rate per cent as shall be allowed for collecting the 
game, and said tax shall be known and kept as the permanent 
road fund. The treasurer shall be allowed one per cent, on all ol 
said fund that comes into his hands. \ 

1 35. Power of commissioners of highways.] § 7. The commis- 
sioners of highways shall have power to employ a competent sur- 
veyor or civil engineer and their necessary assistants, for the pur- 
pose of surveying the route of the road to be improved, and make 
plans, specifications and estimates of said work. The commis- 
sioners shall cause the same to be divided into convenient sec- 
tions, and each section numbered. 

136. Plans— Bids— Notice.] § 8. When the plans and specifi- 
cation are completed, the commissioners shall advertise for 
sealed bids for said work, by publishing a notice thereof for at 
least three weeks, in some newspaper published in said township. 
If there is no newspaper published therein, then in the news- 
paper published nearest said township, and also by posting 
notices in at least ten of the most public places in said town.(l) 

137. Plans and specifications— What to contain.] § 9. The 
plans and specifications shall provide for the grading of a road- 
roads] in said town of has been levied, and when collected will be 

paid to the above bounden A. B., as treasurer of the commissioners of 
highways of said town, to be known and kept as the permanent road fund. 

Now, therefore, if the above bounden A. B. shall well and faithfully 
perform and discharge his duties as such treasurer in respect to said fund, 
and pay out the same only on the order of the commissioners of high- 
ways of said town, and shall honestly and faithfully account for and pay 
over when required all moneys that shall come to his hands belonging to 
said fund, then this obligation to be void, otherwise of full effect and 
virtue. A. B., [seal.] 

C D., [seal.] 

E. F., [SEAL..] 

(1) Form of Notice for Sealed Bids to Construct Gravel Road. 

HIGHWAY NOTICE— PUPIilC LETTING OP CONTRACT. 

Notice is hereby given that sealed bids will be received by the under* 

signed commissioners of highways of the town of , county of , 

State of Illinois, on the day of , 18 — , for constructing [or main' 

taining] a gravel [or as the case may be] road [or roads] in said town, to 
be located at [here state location and route of road as in petition], and 
that the same will be let by contract publicly to the lowest responsible 

bidder, by sections, at the hour of o'clock — M. at [state the place of 

letting.] 

Plans and specifications of the work to be done on said road can bo 
■een at [here state place where plans can be seen.] 

Dated at , this day of , A. D. 18—. 

A. B.,) Commissioners 
C. D., V of 

E.F.J Highways. 



orv. 1L] HARD ROADS. 229 

bed of not less than twenty feet in width on the surface, and so 
constructed as to drain freely to the sides, and with all necessary 
side and lateral ditches and tile drains, bridges and culverts, and 
a track laid with gravel, rock, macadam or other hard and durable 
substance, not less than seven nor more than sixteen feet in 
width, and if constructed of gravel or broken stone, not less than 
ten inches thick in the center, and eight inches thick on the 
edges: Provided, however, this section shall be considered as 
directory only, and shall not prohibit the making of roads of 
different width or thickness, in the discretion of the commis- 
sioners. 

138. Commissioners— Opening bids— Failure to give bonds.] 

§ 10. The commissioners shall meet at the i&me and place ap- 
pointed, for the purpose of opening the bids, and shall proceed 
to let the contracts publicly to the lowest responsible bidder or 
bidders by sections, with proper specifications of the various 
kinds of labor or material on each section; and bidders shall be 
required to separately state their bids for each class of work in 
such manner as the commissioners may provide, and each con- 
tractor shall be required to give bond, with good and sufficient 
sureties, for the performance of his contract, payable to the com- 
missioners for the use and benefit of the township, with the nec- 
essary specifications and stipulations on the part of the contractor 
entered therein. But no commissioner shall be interested, either 
directly or indirectly, in any contract relating in any manner to 
said road.(l) 

(1) Form of Contractor's Bond. 

Know all men by these presents, that we, A. B., as principal, and C. D. 

and E. F., as sureties, of the town of , in the county of , and 

State of Illinois, are held and firmly bound unto G. H., J. K., and L. M., 

as commissioners of highways of the town of , in said county, and 

to their successors in office, in the penal sum of [double the amount of the 

contract] dollars, for the use of the town of , for the payment of 

which sum well and truly to be made, we bind ourselves, our heirs, exe- 
cutors and administrators, jointly, severally and firmly by these presents. 

Signed with our hands and sealed with our seals this day of , 

A. D. 18—. 

The condition of the above obligation is such that whereas, the above 

bounden A. B. did on the day of , 18— , enter into a contract 

with the commissioners of highways of said town to construct a gravel 
road [or as the case may be, stating the kind of work agreed to be done, as 
specified in the contract]. Now if the said A. B. shall well and truly per- 
form the conditions of said contract and comply therewith, according to 
the terms thereof, and the true intent and meaning of the same, then this 
obligation to be void, otherwise of full force and effect. 

A. B., [seal/ 

C. D., [SEAL.' 
E. F., [SEAL.' 



230 BOADS AND BRIDGES. [DI7. IL 

139. May reject bids.] §11. If the commissioners shall be of 
the opinion that the bids are too high, they may reject the same. 
No contract shall be deemed let unless the contractor shall, with- 
in ten day after the letting, enter into contract and file a bond 
with two good and sufficient sureties with the commissioners, in 
the penal sum of double the amount of the contract, payable to 
the commissioners upon the failure to comply with the conditions 
of his or their contraci(l) 

140. Estimates— Payment of contractor.] §12. The commis- 
sioners shall cause their surveyor or engineer to make estimates 
of the work done, and certify to the same, not oftener than once 
in thirty days, as may have been provided in the contracts, and 
shall then issue an order on their treasurer in favor of the con- 
tractor, reserving not less than twenty per cent, of said estimates, 
to guarantee the completion of the contract. Upon the comple- 
tion of the contract the commissioners and engineer shall make 
a thorough and complete examination and estimate of said work, 
and, if found in accordance with the specifications of the con- 
tract, the commissioners shall issue their order on the treasurer 
for the full amount due the contractor. (2) 

141. Record— -Report— Settlement.] §13. The commissioners 
shall keep a full and accurate record of all their proceedings un- 
der this act, and shall, upon the completion of the road, file with 
the town clerk all records, papers, plans, plats, estimates, specifi- 
cations and contracts, and shall make a full report to, and settle- 
ment with the board of town auditors at all regular meetings of 

(l) The form of contract heretofore given for constructing roads, ante p. 147, may b» 
used in case of contract lor making roads under this act. 

(2) Form of Estimate and Certificate by Surveyor or Engineer. 

Estimate of work done by A. B., contractor on the gravel road [or as 

the case may be] in the town of county of , State of Illinois, 

at [here state location of road], from the day of , 18 — , to the 

day of , 18 — , both inclusive, [here give a careful estimate of the 

amount of work done, specifying the nature of the work and how per- 
formed.'] 

Dated the day of , 18—. 

( To be signed by the surveyor or engineer.) 

Form of Certificate to above Estimate. 
State of Illinois, \ „ 

County, / ss * 

I, C. D., surveyor, [or engineer,] do hereby certify to the commission- 
ers of highways of the town of , that the above is a correct estimate 

of work done on the gravel road [or as the case may be] in said town, 
by A. B., contractor, between the dates mentioned. 

C. D., Surveyor. 

The order, Issued by the commissioners of highways on their treasurer, untie? 

i 140 above, may be in the usual form of such orders, as given under Section 10, ante, page 129. 



DIV. II.] HARD ROADS. 



the same. If the commissioners fail to make such settlement, the super- 
visor shall cause an action to be instituted against them, in the corpo- 
rate name of the township to enforce such setttlement. 

142. Construction of road — material.] I 14. The commis- 
sioners, may, in their discretion, cause the road to be constructed wholly 
of earth, and by a thorough system of tile and other drainage, when 
gravel, stone and other suitable hard materials can not be obtained at a 
cost within the means in the hands of the commissioners. 

143. To procure stone, gravel, etc., for roads.] I 15. Com- 
missioners of highways for the purpose of construction, maintaining or 
repairing gravel, rock or other roads, and for procuring material there- 
for, may enter upon lands of others, doing no more damage than the 
necessity of the case may require, and take therefrom such material as 
is necessary for the construction or repair of said roads : Provided, that 
such commissioners of highways, their employes or teams, shall not enter 
upon such lands for the purpose stated in this act without having paid 
or tendered the amount of damages allowed or agreed upon: And pro- 
vided further, if such commissioners of highways and the party or par- 
ties owning or controlling the lands to be entered upon, or from which 
material is to be taken, can not agree as the amount of damage or value 
of such material, then the amount of damage shall be determined as pro- 
vided for in the law for exercising the right of eminent domain. [Act 
approved June 21, 1895.] 

144. Compensation of commissioners and employes.] I 16. 

The commissioners shall receive the same compensation for their 



(1) Form of Agreement as to Damages for Taking Material by Commis- 
sioners. 

Whereas, a gravel [or as the case may be] road is being constructed [or 

repaired] in the town of , county of , and State of Illinois, 

and the commissioners of highways of said town desire to enter upon the 
following described lands, [here describe land to be entered upon,] owned 
[or controlled] by A. B., for the purpose of procuring materials for the 
construction [or repair] of such road. 

Now, therefore, it is hereby agreed between the said commissioners of 
highways and the said A. B., that the amount of damages sustained by 
the said A. B., by reason of the entering upon such land and taking mate- 
rials as aforesaid, be liquidated and agreed upon at dollars. 

In witness whereof, the commissioners of highways and the said A. B. 
have hereunto set their hands, and the said A. B. has affixed nisseal, 
this day of , A. D. 18—. 



C. D.,') Commissioners 

F F. I 



E. F., <• of 

G. H., J Highways. 

A. B., [seal.] 

For the law relating to Eminent Domain see Rev. Stat., chap. 47. 



232 ROADS AND BRIDGES. [DIV. IL 

service under this act as for service under the common road law : 
Provided, that they shall not receive pay for both kinds of ser- 
vice on the same day. The surveyor or engineer shall receive a 
compensation not to exceed that allowed by law to fcounty sur- 
veyors. The assistants or employees shall receive such reasona- 
ble compensation as may be agreed upon. The commissioners 
shall be paid by the supervisor out of the town fund. The sur- 
veyors and other employees shall be paid by the commissioner 
out of the permanent road fund. 

145. Powers of board in counties not under township organiza- 
tion.] § 17. The several county boards of counties not under town- 
ship organization are hereby vested with the same powers for con- 
structing, repairing and maintaining gravel, rock, macadam or 
other hard roads, in their respective counties, as the commission- 
ers of highways in their respective townships, by the provisions 
of this act: Provided, however •, that the question of raising a 
special permanent road tax for the purpose set forth in this act 
shall first be submitted to the legal voters of the county, at any 
regular election for county officers, on the petition of one hun- 
dred land owners, who are legal voters residing in said county, to 
the county clerk, previous to the time of posting the notices for 
said county election, said petition and notices to designate the 
road or roads to be improved, and number of years, not to ex- 
ceed five, for which the tax shall be continued. 

146. Ballots— Election— tax.] § 18. The ballots shall be in 
the form prescribed in section 2 of this act. If a majority of all 
the ballots cast at said election shall be in favor of the special 
permanent road tax, it shall then be the duty of the county board 
to direct the county clerk to extend such tax against all the taxa- 
ble property, including railroads in said county, and proceed in 
the construction of the road or roads voted for, in the same man- 
ner as provided for the guidance of commissioners of highways 
in their respective townships. 

147. Roads to be free.] § 19. All roads constructed under the 
provisions of this act, either by townships under township organ- 
ization, or by counties in counties not under township organiza- 
tion, shall be free for public travel, and kept in repair by the 
proper authorities. 

148. Surplus funds.] § 20. All surplus funds remaining in 
the hands of the treasurer, after the completion of such roads, 
shall be turned over to the common road fund of said township 
or road district, as the case may be, except so much thereof a.« 
the commissioners may order retained for the purpose of repaii 
ing said permanent roads. 



DIY. II.] STEAM ENGINES ON HIGHWAYS. 23< 



STEAM ENGINES ON HIGHWAYS. 

Section*. 

1. Duty of person in charge of steam engine. 

2. When unlawful to blow whistle. 

3. Driving steam engine over bridge. 

4. Penalty. 

AN ACT to protect persons and property from danger from steam engines on public highways- 
[Approved June 26, 1885. In force July 1, 1885.] 

119. Duty of person in charge of steam engine.] § 1. That 
it shall be the duty of persons in charge of any steam engine being- 
propelled over the highways of this State wholly or in part by steam 
power, to stop said engine whenever they meet any person or per- 
sons going in the opposite direction on said highway with horses 
or other animals, until said horses or other animals shall have 
passed by ; and said engine shall be stopped when it is one hun- 
dred (100) yards distant from said horses or other animals, and 
sooner in case said horses or other animals become frightened at 
said engine before arriving at said distance. The owner'or driver 
of said engine shall also keep a good trusty man, not less than 
fifty nor more than two hundred (200) yards in advance of said 
engine, to assist in controlling any horses or other animals being 
driven or used on said highway, until said horses or other ani- 
mals shall have passed by said engine ; and it shall be the duty 
of the man thus sent in advance to use all reasonable care and 
diligence to prevent the occurrence of any accidents which might 
result in case said horses or other animals become frightened at 
said steam engine. 

150. When unlawful to blow whistle.] § 2. It shall be 
unlawful for any person to blow the whistle of said engine, while 
on the public highway. 

151. Driving steam engine over bridge.] § 3. It shall be 
unlawful for any person to drive a steam engine over any bridge 
or culvert, or any public highway in this State, without using 
four sound, strong planks, each to be not less than twelve feet 
long, one foot wide and two inches thick; two of said planks 
to be kept continuously under the wheels of said engine while 
crossing said bridge or culvert. 

152. Penalty. § 4. Any owner of a steam engine, who, by 
himself, agent or employee, violates the provisions of sections 
'one" or "two" of this act, shall be deemed guilty of a mis- 
demeanor, and, upon conviction thereof, shall, for each offense, 
be fined not less than ten dollars nor more than fifty dollars, to 
be recovered before any court of competent jurisdiction, and 
shall also be liable for all damages that may be sustained by 



234 ROADS AND BEIDGES. |_DIY. ir - 

persons or property by reason of his failing to comply with the 
provisions of this act ; and for a violation of section three (3) of 
this act, the owner of said engine shall be liable for all damages 
resulting to said bridge or culvert by reason of his failure to 
comply with the requirements of said section, together with the 
costs of prosecution. 

REFUNDING SURPLUS FUNDS. 

AN ACT making provision for the refunding of surplus funds that now are, or hereafter may be 
in the hands of the county collectors of taxes or county treasurers to the credit of the bond 
fund of townships when such bonds have been fully paid and canceled. Approved and in force 
March 29, 1889. 

Surplus of bond funds to be refunded to township.] § 1. 
Be it enacted by the people of the State of Illinois, represented 
in the General Assembly, That whenever all the bonds of any township 
shall have been fully paid and canceled, and there remains in the hands 
of the county collector of taxes or county treasurer, after said payment, 
any balance to the credit of the bond fund of such township, it shall be 
the duty of any such county collector of taxes or county treasurer, and 
he is hereby authorized to pay to the supervisor of such township the 
balance of such fund in his hands, taking a receipt of such supervisor 
therefor. 

When such funds paid, how may be appropriated by town.] § 2. 
Such funds, when paid to the supervisor of any such town, may be 
appropriated and expended for defraying the general charges and 
expense of such town, for laying out, making and repairing the roads 
and bridges of said town, the purchase of materials, implements and 
machinery therefor, and for the payment of any outstanding orders, in 
such manner and proportions as the legal voters of such town may 
determine at their annual or a special town meeting duly called for such 
purpose. 

On vote, such surplus funds may be turned over to commissioners 
of highways.] § 3. Whenever the legal voters of any town, obtaining 
or receiving surplus funds as mentioned in section one of this act, shall 
determine at any general or special town meeting that a particular 
amount or portion of such surplus fund shall be paid to the commis- 
sioners of highways of such town for road and bridge purposes, as 
provided in section two of this act, it shall be the duty of the supervisor 
of such town to pay such amount to the road commissioners of such 
town and to take their receipt therefor. [See Township act, If 40, art. 
IV., § 3, subdivis. 15, p. 62, ante. 



DIV. III.] FARM DRAINAGE — COMMISSIONERS — OFFICERS. 235 

DIVISION III. 

DRAINS AND DITCHES. (i) 

AN ACT to provide for drainage for agricultural and sanitary purposes, and to repeal certain 
acts therein named. [Approved June 27, 1885. In force July 1, 1885.] 

FARM DRAINAGE — COMMISSIONERS — OFFICERS. 

Section. 

1. Drainage commissioners — B> dy politic. 

2. Clerk — Duties — Drainage record. 

3. Treasurer of district — Bond. 

1. Drainage commissioners— Body politic] § 1 That the 
commissioners of highways in each town in the several counties 
under township organization in this State shall be the drainage 
commissioners in and for all drainage districts in their respective 
towns, and shall be known by the corporate name of Drainage 

Commissioners of District No. , of the town of , county 

of , State of Illinois, and by that name shall be a body politic, 

and may sue and be sued, plead and be impleaded, contract and 
be contracted with, and all other drainage commissioners pro- 
vided for in this act shall be alike the corporate authorities o£ 
their respective districts. (2) 

2. (R. S. 76) Clerk — duties — drainage record.] § 2. The drainage 
commissioners shall select one of their own number who shall act as cleric of said 
drainage commission, whose compensation shall be two dollars per day for actual 
service; he shall be custodian of all papers and records pertaining to drainage 
matters in his town, and shall keep in a well-bound book, to be known as the 
•'Drainage Record," a record of the proceedings of the commissioners, and shall 
enter at length therein all the findings and orders of the commissioners pertaining 
to the subject of drainage. [As amended June 10, 1897.] 

3. Treasurer of district— Bond.] § 3. In all districts, in 
counties under township organization, the supervisor of the town 

(1) The Constitution of Illinois, on the subject of drainage, declares as follows: 
The general assembly may pass laws permitting the owners of lands to construct drains, 

ditches and leveee, for agricultural, sanitary and mining purposes, across the land of others, 
and provide for the organization of drainage districts, and vest the corporate authorities thereof 
with power to construct and maintain levees, drains, and ditches, and to keep in repair all 
drains, ditches and levees heretofore constructed under the laws of this State, by special assess- 
ments upon the property benefited thereby. Const., Art. IV, g 31, as amended 1»78, by vote of 
the people. 

(2) It is not a constitutional objection to the drainage law that it fails to provide 
for the election of the corporate authorities of a district when constructed. The constitu- 
tional provision relating to drainage districts, does not require that the corporate authorities 
who exercise the power of levying special assessments on lands benefited thereby, shall be 
elected by the people of the district. The special amendment of the constitution, adopted in 
1878, so far as it invades the former limitations of the constitution, must prevail, and such lim- 
itations are not applicable to special assessments for drainage purposes. Huston et &l. v . Clark: 
etal., 112 111., 344. 



236 DRAINS AND DITCHES. [DIV. in. 

in which the district is situated shall be the treasurer of the dis- 
trict. When the district lies in two towns, the supervisor ©f one 
of the towns, to be designated by the commissioners, shall be the 
treasurer. In all special drainage districts the county treasurer 
shall be the treasurer of the district. In all cases the treasurer 
shall give bonds to the commissioners, not less than double the 
amount of money likely to come into his hands in any one year, 
as such treasurer : Provided, that this shall not apply to the 
county treasurer when his official bonds are deemed sufficient. (1) 

EIGHTS OF DRAINAGE. 

Section. 

4. Owners may drain — Natural course — Damages. 

5. Drain through land of others — Jurisdiction of justices — Summons. 

6. Trial— Verdict— Damages— Judgment final. 

7. When plain tift deems not best to construct drain— Proceedings. 

8. Commencing suit— Bond— Condition— Witnesses. 

9. Plat to be filed — Failure to comply — Judgment. 
10. Willful injury to drain— Penalty. 

4. Owners may drain— Natural course— Damages.] § 4. 

Owners of land may drain the same in the general course of nat- 
ural drainage, by constructing open or covered drains, discharg- 
ing the same into any natural water course, or into any natural 
depression, whereby the water will be carried into some natural 
water course, or into some drain on the public highway with the 
consent of the commissioners thereto; and when such drainage is 

(1) Form of District Drainage Treasurer 1 s Bond. 

Know all men by these presents that we A. B., C. D., and E. F., of the 
county of , State of Illinois, are held and firmly bound to the drain- 
age commissioners of District No. , iu the town of , county of 

, and State of Illinois, in the sum of [here insert a sum not less than 

double the amount of money required to come into the hands of the trea- 
surer in any one year] which sum well and truly to be paid, we bind our- 
selves, our heirs, executors and administrators, jointly and severally 

firmly bv these presents. Sealed by our seal and dated this day of 

, 18-. 

The condition of the above obligation is such that whereas the above 

bounden A. B. has become treasurer of Drainage District No. above 

mentioned, now, therefore, if the said A. B. shall well and truly perform 
all the duties required of him as such treasurer, and shall promptly pax- 
over and account for all money thatcomes to his hands assuch, as required 
by law, then this obligation to be void, otherwise to remain in full force 
and effect. 

A B , [SEAL.] 

C D , [SEAL.] 

D E , [SEAL.] 

The law does not provide as to sureties upon the district treasurer's bond nor as to the 
conditions of the bond, but the commissioners would themselves no doubt have generr-- 1 au- 
thority in this regard, under which they may require such bond as will be sufficient. The 
general custom is to require at least two sureties. 



DIY. III.] EIGHTS OF DRAINAGE. 237 

wholly upon the owner's land, he shall not be liable in damages 
therefor to any person or persons or corporation. (1) 

5. Drains through land of others— Jurisdiction of justices — 
Summons.] § 5. When it is necessary to extend drains on or 
through the land of others, to obtain a proper outlet, and the 
person desiring to drain purposes to construct such extension at 
his own expense, by means of an ample and properly made tile 
ditch, and the owners of the land refuse to consent thereto, the 
person or persons desiring to drain may cause a summons to 
issue from any justice of the peace in the county, in the same 
form, and returnable in the same manner, as other summons in 
civil suits, and proceedings shall be had thereon as in other civil 
causes before justices of the peace : Provided, if the owner or 
owners of such land do not reside in said county, or cannot be 
found therein, summons may be served by leaving a copy with 
the person or persons in possession or control of such premises.(2) 

(1) Form of consent of Highway Commissioners to extend Drain into 
Drain on the Highway. 

We, the commissioners of highways of the town of , county of 

, State of Illinois, do hereby consent that A. B. the owner of land in 

the vicinity of the highway hereinafter mentioned, may drain the same 
by constructing an open or covered drain whereby the water may be car- 
ried into the drain on the public highway and connecting therewith at or 
near [here deseribe the place ivhere the drain will connect with the drain 
on the highway with reasonable certainty .~\ 

Given under the hands of said drainage commissioners this day of 

,18-. 

Attest. G. H., ) Commissioners 

L. M., Clerk. O. P., \ of 

R. S., ) Highways. 

In this State the same rule is applied to surface water flowing in a regular 
channel as is applied to a water course. The owner of the dominant heritage, or higher tract 
of land, has the right to have the surface water failing or coming naturally upon his premises, 
pass off the same through the natural drains upon and over the lower, or servient lands; and 
the owner of the dominant heritage may, by ditches or drains, drain his own land into the nat- 
ural and usual channel, even if the quantity of water thrown upon the servient heritage is 
thereby increased. Where two tracts of land adjoining each other are so situated that the 
water falling or collected by melting snow and the like upon one, naturally descends upon the 
other, it must be suffered by the owner of the lower one to be discharged upon his land, if de- 
sired by the owner of the upper field. The owner of the upper field in such a case, has a nat- 
ural easement, as it is called, to have the water that falls upon his own land flow off the same 
upon the field below, which is charged with a corresponding servitude in the nature of domi- 
nant and servient tenements. The owner of the upper field cannot construct drains or ditches 
so as to create new channels for water in the lower field, but he may make such drains for ag- 
ricultural purposes on his own land as may be required by good husbandry, although by so 
doing the flow of water may be increased in a regular, well denned channel, which carries the 
water from the upper to the lower field. The owner of land upon which there is a pond, in 
which is collected the surface water, only, from rains and melting snow, when good husbandry 
so requires, may drain the same by an artificial drain constructed upon his own land, whereby 
its water is thrown into the same outlet or natural drain it was accustomed to take before, when 
the pond was full, notwithstanding the flow of water over a servient tract of land may thereby 
be increased. Peck et al. v. Herrington, 109 111., 611. 

(2) It is proper that the consent of the owner of land to allow the owner of adjoin- 
ing land to extend a drain on or through his land should be in writing. The following may be • 
the form of such consent: 

Form of Consent of Owner to Allow Drain Extended through his land. 
Know all men by these presents that I, A. B., for and in consideration : 



'238 DKATNS AND DITCHES. [DIV. III. 

6. Trial— Yerdict— Damages— Judgment final.] § 6. The, 
justice, or jury if a jury is empaneled, shall hear the evidence, 
and if they find such drain, if constructed in the manner pro- 
posed, would not empty into a natural water course or natural 
depression, whereby the water would be carried into any natural 
water course or any drain on a public highway, by consent of the 
road commissioners, they shall find for the defendant; if they 
find such drain, if constructed, would empty into a natural water 
course or natural depression, whereby the water would be carried 
into any natural water course or any drain on a public highway, 
toy consent of the road commissioners, they shall find for the 
plaintiff or plaintiffs, and shall allow the defendant or defendants 
such actual damages only as will be sustained by entering upon 
the land and constructing such drain. The judgment shall be 
final and conclusive between the parties until after the expiration 
of two years from the finding in the former case.(l) 

of the sum of one dollar [or such sum as may be agreed upon,] to me in 
hand paid by C. D., do hereby consent that he, the said C. D., raav con- 
struct a drain through the following lands owned by me, [here describe 
the land with reasonable certainty,'] said drain to commence, r here de- 
scribe the route of the drain if necessary, and place of termination; de- 
scribe also the kind of drain to be constructed,'] said drain to be completed 

on or before the day of , 18 — . 

Witness my hand and seal this day of -, 18 — . 

A B , [seal.] 

Form of Summons to Extend Drains through the Land of others. 
State of Illinois, \ 

County, ; ss< 

The people of the State of Illinois to any constable of said county greeting: 

You are hereby commanded to summon A. B. to appear before me at 
, on the day of , at — o'clock — . M., to answer the com- 
plaint of C. D., alleging that the said A. B. refuses to consent to allow the 
said C. D. to extend a drain necessary through the land of him, the said 
A. B. to obtain a proper outlet in accordance with the statute in such case 
made and provided, and hereof make due return as the law directs. 

Given under my hand this day of , 18 — . 

John Doe, J. P. 

Concerning summons in civil suits the statute on this subject provides that the 
Justice shall specify therein a certain place, day and hour for the trial, not less than five nor 
more than fifteen days from the date of such summons, and that every summons shall be served 
at least three days before the day of trial mentioned therein, by reading the same to the de- 
fendant. See Haines' Treatise, new Ed., p. 264. 

On the subject of proceeding under the above section of the drainage laws, which 
provides that the same shall be had as in other civil cases before Justices of the Peace, see 
Haines' Treatise, new edition, under the head of ''commencement of suits and the service and 
return of process," "appearance of the parties," "trials and incidents thereto." 

Subpoenas for the attendance of witnesses may issue as in other cases before 
Justices of the Peace. 

(1) The law does not require that the person designated as plain tin 7 , or person 
desiring to extend a drain through the land of another shall file any written complaint with the 
Justice setting forth his case. It contemplates, however, under Section (3, that the claim of the 
plaintiff or party moving will be made to appear by the evidence which he offers before the 



DIV. III.] EIGHTS OF DRAINAGE. 239 

7. When plaintiff deems not best to construct drain— Proceed- 
ings.] § 7. If, after judgment, the plaintiff or plaintiffs in such 
suit shall deem it best not to construct such drain, they may so 
state upon the docket of the justice, at the foot of such judgment, 
and pay all costs of such trial, but shall not again be permitted 
to commence a suit for the same purpose, until after the expira- 
tion of one year from the rendition of the judgment; if they desire 
to construct such drain, they shall first pay to the justice the 
judgment and costs taxed against them, and may thereupon enter 
upon such premises and construct such drain, and may thereafter 

Justice so that a formal statement thereof may in general be dispensed with in the first 
instance. 

Form of Docket Entry in Case of Constructing Drain over Land of 

Another. 
State of Illinois, \ 

County, r s ' 

In Justice's Court. Before E. F. Justice. 

A B , ) 

vs. > Proceeding under Drainage Law to extend drain. 

C D , J 

1885. Aug. 1st. — Summons issued, returnable August 6th, 1885, at 
one o'clock P. M and delivered to L. M., constable. Plaintiff having 
first filed satisfactory bond in the sum of $50, for costs and damages 
and plat of land to be drained. 

Aug. 6th. — Summons returned by L. M., constable, personally served 
by reading the same to the defendant Aug. oth, 1885. 
Aug 6th. — Parties appear. 

The plaintiff' being the owner of land in drainage district No. , 

town of , county of , and desiring to extend the drain 

from his land through the land of the plaintiff to obtain a proper out- 
let at his own expense, complains that the defendant refuses to con- 
sent thereto. 
The following persons were empanelled and sworn as jurors, viz: [here 
set forth the names of the jurors.'] 

Upon hearing the evidence the jury find such drain, if constructed in 
the mauner proposed, would not empty into a natural water course [or 
natural depression whereby the water would be carried into any natural 
water course or any drain on the public highway by consent of the road 
commissioners,] they therefore find for the defendant, [or thejury fiud 
such drain, if constructed, would empty into a natural watercourse or nat- 
ural depression whereby the water would be carried into any natural 
water course or any drain on the public highway, by consent of the road 
commissioners, and therefore find for the plaintiff and allow the defen- 
dant dollars actual damages as will be sustained by entering upon his 

said land and constructing such drain. It is therefore considered by the 

court that the defendant have and recover of the plaintiff the sum of 

dollars damages allowed to him as aforesaid with costs of suit.] 

On the subject of Docket Entries see Haines' Treatise, new edition. Page 47S. 

The words ''find for the plaintiff" or "find for the defendant." in Section 6, it seems are not 
to be understood in the sense in which these terms are generally used in judicial proceedings. 
These terms in this case refer merely to the finding as to the right oi the plaintiff or party mov- 
ing to extend his drain over the land of the defendant or opposite party, so that a finding in 
favor of the plaintiff gives to the defendant or opposite party a judgment for the amount of 
damages found to his land. 



240 DRAINS AND DITCHES. [DIV. III. 

at all times, in proper season, enter upon said land for the pur- 
pose of repairing such drain; and it shall be his or their duty to- 
keep it in good repair, and this right and duty shall pass to the 
heirs or assigns of the lands for the benefit of which the drain is 
constructed : Provided, that if the person or persons constructing 
such drain, or repairing the same, shall unnecessarily cause any 
damage to the owner or owners of such land, they shall forfeit 
and pay to such owner or owners three times the amount of such 
damage, to be recovered in any form of action. 

8. Commencing suit— Bond— Condition— Witnesses.] § 8. 

Before any person or persons shall be permitted to commence 
an action as provided for herein, they shall file a bond in a sum 
not less than fifty dollars, with security to be approved by the 
justice, conditioned that they will pay all costs legally accruing 
in said cause, and all damages, if damages are awarded therein, 
within sixty days after the rendition of judgment, or pay all 
costs and abandon the construction of such drain in the manner 
provided by this act, within the same time. If the defendant 
or defendants procure the attendance of any witnesses not neces- 
sary to a proper defense, all the costs of such witnesses and of 
subpoenaing the same shall be taxed to the defendant or defend- 
ants^!.) 

9. Plat to be filed— Failure to comply— Judgment.] § 9. 
Prior to issuing the summons in commencing any suit under this 

(1) Form of Bond for Costs in Suit before Justice. 

Know all men by these presents that we A. B., C. D. and E. F., of the 

county of , and State of Illinois, are held and firmly bound unto [here 

insert the names of the defendant in suit to be commenced,] their heirs, 

executors, administrators and assigns for the sum of dollars, which 

sum well and truly to be paid, we bind ourselves, our heirs, executors and 
administrators, jointly, severally, aud firmly by these presents. Sealed 
with our seals and dated this ot , 18 — . 

The condition of the above obligation is such that whereas the above 
bounden A. B. is about to cause a summons to be issued by G. H., a Jus- 
tice of the peace of the county of , and State of Illinois, agaiust 

{here insert the names of the defendants'] that proceedings may be had to 
determine the right ot" the above bounden A. B. to extend a drain through 
the land of the said [here insert the names of the defendants] under the 
statute concerning drainage in such case made and provided. Now if the 
said A. B. shall pay all costs legally accruing in said cause and all dam- 
ages, if damages are awarded therein, within sixty days after the rendi- 
tion of judgment or pay all costs and abandon the construction of such 
drain in the manner provided by the act for drainage for agricultural aud 
sanitary purposes within the same time, then this obligation to be void, 
otherwise to remain in full force and effect. 

A. B., [seal.] 

C. D., [SEAT,.] 

B. F., [SEAL.] 



DIV. III.] COMBINED DRAINAGE. 241 

act. the plaintiff or plaintiffs shall file with the justice a sketch, 
or plat, of the land to be drained, and that of all other persons 
across or upon which such drain is to be constructed, showing the 
starting point of such drain and its proposed course, across or 
upon the land of others, and the point of its discharge: and such 
plat shall be kept by the justice with the other papers in said 
cause. A failure to comply with the provisions of this section 
Bhall be sufficient cause for the dismissal of the suit at any time 
before the trial is entered upon. If the judgment is for the plain- 
tiff the justice shall file the papers and map with the town clerk, 
to be recorded on the drainage record. 

10. Willful injury to drain — Penalty.] § 10. If any person 
or persons shall willfully fill up, injure or destroy any drain con- 
structed as herein required, or willfully prevent or delay the con- 
struction of any drain in the manner provided by this act, such 
person or persons shall be deemed guilty of a misdemeanor, and, 
upon conviction thereof, for the first offense, shall be fined in the 
sum of not less than twenty-five dollars; nor more than one hun- 
dred dollars; and for the second offense shall be fined in the sum 
of not less than fifty dollars, nor more than two hundred dollars; 
and for each subsequent offense shall be fined not more than two 
hundred dollars and confined in the county jail for not less than 
thirty days nor more than one year. 

COMBINED DRAINAGE. 
Section. 

11. Cost proportionate — Petition— Proceedings. 

12. Town clerk file petition — Notice- 

13. Meeting of drainage corn rnissio tiers— Evidence — Finding,. 

14. Commissioners view premises — Survey and Estimates. 

15. Adjourned meeting — Organization of district. 

16. Commissioners fix boundaries — Employ engineer. 

17. System of drainage — Tile drains — Engineer. 

18. Procure right of way — Releases — Damages. 

19. Jury to assess damages — Venire — Notice to owners. 

20. Trial— Challenges— Verdict— Transcript to be tiled. 

11. Cost proportionate — Petition— Proceedings.] § 11. Whem 
the case involves a system of combined drainage in one town, and 
it is proposed that the cost shall be borne proportionately by the- 
several parties benefited, a petition addressed to the drainage 
commissioners shall be presented to the town clerk, signed by a 
majority in number of the adult owners of land lying in a proposed 
district, and they shall be the owners in the aggregate of more 
than one-third of the lands lying in the proposed district, or by 
owners of the major part of the land and who constitute one- 
third or more of the owners of the land in the proposed district, 
setting forth the boundaries, or a description of the several tracts 

16 



242 DRAINS AND DITCHES. [DrV. ITI. 

of land thereof or fractions as usually designated : Provided, that 
where two land owners only are concerned, the petition may be 
signed by one, or by both of these, and the amount of land owned 
by the parties shall not be a condition. Said petition shall state 
that the Jands lying within the boundaries of said proposed district 
require a combined system of drainage or protection from wash 
or overflow; that the petitioners desire that a drainage district 
may be organized, embracing the lands therein mentioned, for the 
purpose of constructing, repairing or maintaining a drain or drains, 
ditch or ditches, embankment or embankments, grade or grades, 
or all or either, within said district, for agricultural and sanitary 
purposes, by special assessments upon the property benefited 
thereby. The names of the owners of the several tractsof land to- 
gether with their postoffice address shall be given so far as known.(l) 

(1) Form of Petition to Commissioners for Drainage District. 
To the Drainage Commissioners of District No. — , of the town of — , 

county of , State of Illinois: 

The petition of the undersigned petitioners respectfully represents that 
they desire that a drainage district may be organized, embracing the lands 
within the following boundaries, [or described as follows] to-wit : [here 
describe the lands by boundaries, or other description as the law pre- 
scribes'] for the purpose of constructing, repairing and maintaining drains, 
embankments and grades, [or as the case may be] within said district for 
agricultural and sanitary purposes, by special assessments upon the 
property benefited thereby. That the lands lying within the boundaries 
of said proposed district require a combined system of drainage and pro- 
tection from wash or overflow. That this petition is signed by a majority 
in number of the adult owners of land lying in said proposed district, and 
that they are the owners in the aggregate of more than one-third of the 
lands lying in the proposed district [or by the owners of the major part of 
the lands, and who constitute one-third, or more than one-third, as the 
case may be, of the owners of the land in said proposed district]. That 
hereunto annexed is a schedule forming a part of this petition, showing 
the names of the owners of the several tracts of land comprised in said 
proposed drainage district, together with their post office address, so far 
as known, with a description of the tracts of land owned by each. 

Said petitioners therefore pray that you, the said drainage commission- 
ers, will proceed and cause a drainage district to be organized as desired 
by said petitioners and expressed in this petition. 
Dated this day of , 18—. 

Form of Schedule of Owners of Land to be Attached to Petition for 

Drainage District. 
The following is a correct statement of the names of owners of the sev- 
eral tracts of land, together with their post office address and description 
of said tracts mentioned in the petition to which the same is annexed. 



NAMES OF OWNERS. 


DESCRIPTION OF LAND. 


NUMBER OF ACRES. 


P. 0. ADDRESS. 


John Jenkins 

James Jenkins 


N. E. liofN.E. % Sec. 1 
S. E. liofN. E. V± Seel 


40 
40 


Smith town. 
Jonestown. 



In giving the names of owners of the several tracts of land in the petition, the law 



DTV. III.] COMBINED DRAINAGE. 243 



12, Town clerk file Petition— Notice.] § 12. It shall be 
the duty of the town clerk to file said petition in his office, and 
he shall, within five days after the filing of said petition, give 
notice in writing to each of the commissioners of highways of 
such town, of the filing of such petition, and shall give notice, if 
there be two parties only interested in the drainage, to each of 
the two parties concerned, or if the petition is signed by two or 
more and more than two parties are involved, then the notice 
shall be given by posting written or printed notices, in at least 
three public places in or near the proposed drainage district, that 
a meeting of the drainage commissioners will be held at such 
place and time as the commissioners may decide upon, not less 
than eight days nor more than fifteen days from the date of said 
notice, for the purpose of organizing said drainage district. He 
shall also file a copy of said notice in his office.(l) 

13* Meeting of drainage commissioners — Evidence — Finding.] 

§ 13. It shall be the duty of the drainage commissioners to meet 

would seeni to contemplate that a description of the tracts owned by each should also be set forth 
so that a complete case may be made and presented to the commissioners. 

Any general description of i lie tracts of land in the schedule for purposes of the peti- 
tion sufficient to point out the same, will suffice. 

(1) Form of Notice to Commissioners of Filing Petition for Drainage 

District 

To A. B., one of the Commissioners of Higbways of the town of , 

county of , and State of Illinois : 

You are hereby notified that on the - — day of , 18 — , a petition 

addressed to the Drainage Commissioners of District No. — , of the town 

of , county of , State of Illinois, was presented and duly filed 

in the office of the town clerk of said town of , praying for the or- 
ganization of a drainage district to be comprised of the lands bounded [or 
described] as follows, [here describe the lands or boundaries thereof as set 
forth in the petition ] 

Given under my hand this day of , 18 — . 

G. H., Town Clerk. 

A copy of the foregoing notice should he given by the town clerk to each of the com- 
missioners. The town clerk should also file in his office a copy of each of all such notices as he 
may give under the above section. 

Form of Public Notice of Filing Petition for Drainage District. 

DRAINAGE NOTICE. 

Notice is hereby given that a meeting of the Drainage Commissioners 
of District No. — , of the town of , county of , and State of Ill- 
inois, will be held at at the hour of — o'clock on the day of 

, 18 — , as decided upon by said commissioners, for the purpose of or- 
ganizing a drainage district comprised of lands bounded [or described] as 
follows, [here describe the lands asset forth in the petition] according to a 
petition therefor presented and duly filed in the office of the town clerk 

of the town of aforesaid, on the day of , 18 — . 

Given under mv hand this day of , 18—. 

G. H.. Town Clerk. 



244 DRAINS AND DITCHES. . [DIY. ITJL 

at the time and place mentioned in said public notice, and the 
clerk shall lay before them the said petition and all other papers 
in the case, and they shall thereupon proceed to ascertain whether 
the said petition contains the signatures of a majority of the adult 
persons owning land in said district, and if they are the owners- 
of more than one-third of the land situate in said district, or by 
the owners of the major part of the land who constitute one-third 
or more of the owners of the land; and the affidavits of two or 
more credible signers of said petition that they have examined 
the same, are acquainted with, the locality of the district, and that 
they believe that said petition is signed by a majority of the adult, 
owners of land in said district, and that said signers are the own- 
ers of more than one-third of the lands in said district, or by the 
owners of the major part of the land, and who constitute one- 
third or more of the owners of land in the proposed district, may 
be taken as prima facie evidence of the facts set forth in said pe- 
tition as against the owners of lands in said district, and as con- 
clusive evidence against all persons signing said petition, that 
they have accepted the necessity for the organization of such 
district hereunder. At such meeting, any other owners of land 
within said district shall be permitted to place their names on 
said petition, if they so desire. Any person owning land in said 
district, whose name does not appear on said petition, may, at 
said time and place, appeal and controvert any material state- 
ment in said petition; and for the purposes of such hearing, the 
said officers shall have full power to administer oaths to and 
examine all witnesses produced, and shall decide all such contro- 
verted questions at such time and place, and make a written state- 
ment of their finding, to be filed with the papers in the case. If 
they find that the petition has not been signed as herein required, 
they shall dismiss the case. For cause shown they may acljourn, 
but not for more than three days at any one time.(l) 

14. Commissioners view premises — Survey and estimates.] 

§ 14. If the commissioners shall find in favor of the petitioners,, 

(1) Form of Affidavit of Two Petitioners. 

State of Illinois, \ Q£S 

County, i ss - 

A. B. and C. D. each being duly sworn, do each depose and say that they 
are signers to a petition on file in tbe office of the town clerk of the town 
of , county of , and State of Illinois, praying for the organiza- 
tion of a drainage district comprised of the lands bounded [or described] 
as follows, [here set forth the lands as in the petition] that they have each 
examined said petition and are acquainted with the locality of the district 
proposed, and that they believe that said petition is signed by a majority 
of the adult owners of land in said district, and that said signers are the 



DIV. III.] COMBINED DKAINAGE. 245 

as set forth iu the last preceding section, they shall then adjourn 
their meeting to a time not less than eight days nor more than 
fifteen days, and publicly announce the same. The commissioners 
shall, in the meantime, go upon the lands included in the pro- 
posed district and personally examine the same; and tbey shall 
have power to employ a competent civil engineer, if in their opin- 
_ , 1 

owners of niore than one-third of the land in said district, [or by the own- 
ers of the major part of the land and who eontstitute one-third of the own- 
ers of land in the proposed district, or as the case may be.] 

A. B. 

Subscribed and sworn to before me this 1 C. T>. 

day of , 18—. 

E. F., J. P. 

.Form of Oaths to Witnesses to be Administered by Drainage Commis- 
sioners. 

You do solemnly swear that the evidence you shall give in the proceed- 
ing now in hearing for the organization of a drainage district on the peti- 
tion of L. M., and others, shall be the truth, the whole truth, and 
nothing but the truth, so help you God. 

In administering oa- lis to witnssses it is considered proper to mention therein the 
«ase or proceeding in which the witness is to give evidence. In drainage proceedings under the 
above section, it will be a sufficient description of the proceedings to refer to the petition in the 
case, by mentioning the name of the first signer on the same, adding thereto the words " and 
others," as in the forego. ng form. This will be a sufficient description as to the proceedings iu 
the form of oath to be administered to a witness so as to call his attention to the matter in which 
he is called upon to testify. 

Form of Statement of Finding by Commissioners. 

Whereas on the day of , 18 — , a petition addressed to the 

Drainage Commissioners of District No. — , of the town of , county 

of , State of Illinois, was presented and filed in the office of the town 

clerk of said town of , praying that a drainage district be organized 

embracing the lands within the following boundaries [or described as fol- 
lows] to-wit : [here describe the lands as in the petition]. The petitioners 
in said petition representing that they desire tnat a drainage district may 
be organized, embracing the lands aforesaid, for the purpose ot construct- 
ing, repairing and maintaining drains, embankments and grades, [or as 
the case may be,] within said district, for agricultural and sanitary pur- 
poses, by special sssessmeuts upon the property benefited thereby. That 
the lands lying within the boundaries of said proposed district require a 
combined system of drainage and protection from wash or overflow. And 
further, representing that the said petition is signed by a majority in 
number of the adult owners of the land lying in said proposed district, 
and that they are the owners in the aggregate of more than one-third of 
the lands lying in the proposed district [or by the owners of the major 
part of the lands, and who constitute one third or more than one-third, 
as the case may be, of the owners of the land in said proposed district.] 

And said commissioners having decided to hold a meeting to consider 
said petition on the day of , 18 — , at , and due notice hav- 
ing been given of the filing of said petition, and of the time and place of 
the meeting of said commissioners, according to the statute in such case 
made and provided. And said commissioners having met at the time and 
place aforesaid, and having examined and considered said petition and all 



246 DRAINS AND DITCHES. [DIY. III. 

ion the services of an engineer be necessary, who shall thereupon 
proceed to make such survey and estimates as the said commis- 
sioners may direct, and shall make and return to the said com- 
missioners a map or plat of his survey, and a full report of all 
estimates so required of him. 

15. Adjourned meeting— Organization of district] §15. At 

the time appointed for the adjourned meeting, the commissioners 
shall meet and examine the map and report of the engineer, if 
any engineer shall have been employed, and said commissioners 

other papers in the case, and having examined all witnesses produced, do 
find in favor of (or against) the said petitioners. 
In witness whereof said Drainage Commissioners have hereunto set 

their hands this day of , 18 — . 

Attest: A. B.,1 tw;«o 

a H Clerk C D I Drainage 

Or. ±i.. Clerk. C. D., j- Commissioners . 

There would seem to lie some conflict or at least want of harmony in the provisions of 
sections 13 and 15 of this act. Section 13 provides for a full and complete hearing and examina- 
tion into the questions presented by the petition praying for the organization of a drainage dis- 
trict, and a statement of the finding by the commissioners, which statement it is provided shall be 
filed with the papers in the case, whereupon an adjourned meeting of the commissioners is provi- 
ded by section 14. Section 15 then provides for another hearing upon the petition at said ad- 
journed meeting, involving, it would seem, a re-hearing of the whole subject considered at the 
first meeting under section 13. Section 15, however, would seem to contemplate that at the ad- 
journed meeting of the commissioners there may be changes made in the boundaries of the proposed 
district, whereby lands described in the petitionjmay be excluded, or other lands added to the dis- 
trict, and there may be added more signers to the petition; in which case a formal re-examination 
of the subject of the petition might be proper, and this second finding of the commissioners would 
seem to be for the purpose of covering or meeting the contingencies aforesaid; under other circum- 
stances such second finding would be merely cumulative, and could add little or nothing to the 
finding of the commissioners in the first instance under section 13. 

The law provides that the clerk of the Drainage Commissioners shall keep in a 
well bound book, to be known as the "Drainage Record," a record of the proceedings of the com- 
missioners and shall enter at length therein all findings and orders of the commissioners pertain- 
ing to the subject of drainage. See ante, ^ec. 2, p. 235. ' 

The following may be the form of the clerk's record of proceedings of the commissioners at their 
first meeting on petition for a drainage district, which can be varied according to the facts to suit 
the circumstance of each case. 

Form of Record of Proceedings of Commissioners at First Meeting on 
Petition for Drainage District. 

State of Illinois | Board of D rainag e Commissioners, 

uoumy, y Ti\*tr\ot ISTo 

Town of J district jno. . 

A meeting of the Drainage Commissioners of District No. — , of the town 

of was held at , on the — day of , 18 — , to consider the petition 

of L. M., and others, filed in the Drainage Commissioners clerk's office, 

on the — day of , 18 — , praying for the organization of a drainage 

district to embrace the lands bounded [or described] as follows: [here set 
forth the lands as in the petition]. Upon a full hearing on such petition, 
the commissioners find in favor of the petitioners, [or as the case 
may be], and thereupon make a written statement of their finding in the 
words and figures following to-wit: [here insert the statement of the finding 
of the commissioners as filed with the clerk']. And thereupon the meetir.g 

of the commissioners was adjourned to the — day of , 18 — , at - 

o'clock — . M., at , and the commissioners did then and there p>» - 

licly announce the same. 



J31V. III.] COMBINED DRAINAGE. 247 

shall have power to change boundaries of such proposed district 
from the boundaries given in petition, so as to take in land not 
embraced, or exclude lands taken into said proposed district, and 
shall permit additional signatures to be made to the petition by 
any adult person or persons owning land in, or owning land de- 
sired to be taken into such proposed district, to the end that a 
majority of the adult owners of land in the district as finally to be 
organized, and who shall be the owners in the aggregate of more 
than one-third (J) of such land, or by the owners of the major 
part of the land, and who constitute one-third or more of the 
owners of land in the proposed district, shall have signed the pe- 
tition, which facts said commissioners shall find and put such 
finding in writing, and the same shall be filed and the clerk shall 
enter the same in his record, which finding shall be conclusive. 
And said commissioners may adjourn the meeting provided for in 
this section, not less than five (5) days at a time, and not more 
than fifteen (15) days in all, for the purpose of making the neces- 
sary examinations and findings, and shall publicly announce the 
time and place they so adjourned; and if, from their own exami- 
nation, and said map and report, if any there be, it shall appear 
that the lands included in the proposed district will be benefited 
for agricultural and sanitary purposes by the construction of a 
drain, or a combined system of drainage, they shall so find, unless 
they shall find, from the evidence of witnesses then introduced, that 
the cost of the proposed work will exceed the benefits to be derived 
therefrom. And should they find in favor of the petitioners, or 
should a two-thirds (§) majority of the owners of land owning more 
than one-half (h) of the lands lying in said proposed district still 
desire the formation of said district, and such desire shall be evinced 
by a failure to withdraw their signatures from the petition, the 
commissioners shall enter on their record an order in writing or- 
ganizing said drainage district, and such district shall thereupon 
be declared fully organized. Each district shall be designated by a 

number, as Drainage district No. — in township, county, 

and State of Illinois. And when the commissioners shall have 
organized said district, they shall cause a map thereof, showing the 
boundaries thereof, to be made, and the same shall be filed with 
the other papers in the case. The signing of any petition referred 
to in this act shall be taken as conclusive against the person so 
signing that they have accepted the provisions of this act as to 
their assessments of benefits and damages thereunder. (1) 

(1) Form of Finding of Commissioners on Petition for Drainage. 

Whereas, on the day of 18 — , a petition addressed to the 

drainage commissioners of district No. — , of the town of - — , county of 



248 DRAINS AND DITCHES. [DIV. in. 

1 5a. Effect of organization of drainage district — election — 
officers.] I 15a. Upon the organization of any drainage district as 
provided in section 15 of this act, the duties and obligations of the 
commissioners of highways, as said drainage commissioners of such dis- 
trict shall cease as soon as drainage commissioners shall have been 
elected and qualified, as herein provided. It shall be the duty of the 
town clerk to call an election in each district in his township, including 
the new districts organized during the previous year, by giving ten (10) 
days' notice that an election will be held (specifying time and place,) 
said notices shall be posted in three (3) conspicuous places in said 
districts. Elections shall be held in the several drainage districts 
organized under this act on the second Saturday in March of each year, 
between the hours of 2 and 6 o'clock P. M. 

At the first election in each district there shall be elected three (3) 
commissioners, one for one year, one for two } T ears, and one for three 
years, and annually thereafter, one drainage commissioner shall be 
elected who shall hold his office three years, and until his successor is 
elected and qualified. Every adult owner of land in the district, 
whether residing within or without the district, shall be a voter, 
and, eligible to the office of drainage commissioner. Said elections shall 
be conducted after the manner provided by law governing school elec- 
tions. Commissioners of highways shall act as judges and clerk of the first 
election held in any district ; thereafter the drainage commissioners shall 
act as judges and clerk of elections in their respective districts. If said 
commissioners be not present, it shall be competent for the electors pre- 
sent to select judges and clerk of said election. Returns of said election 
shall be made to the town clerk, who shall record the same in a book 

, state of Illinois, was presented and filed in the office of the town clerk, 

of the town or , praying that a drainage district be organized embracing 

the lands within the following boundaries [or described as follows,] to-wit: 
[here describe the lands as in the petition.] The petitioners in said petition 
representing that they desire that a drainage district may be organized em- 
bracing the lands aforesaid, for the purpose of constructing, repairing and 
maintaining drains, embankments and grades, [or as the case may be] within 
said district for agricultural and sanitary purposes by special assessments upon 
the property benefitted thereby. That the lands lying within the boundary of 
said proposed district require a combined system of drainage and protection 
from wash or overflow. And further representing that the said petition is 
signed by a majority in number of the adult owners of the land lying in said 
proposed district, and that they are the owners in the aggregate of more than 
one-third of the lands lying in the proposed district. 

And said commissioners having decided to hold a meeting to consider said 

petition on the day of , a. d. , at , and due notice having been 

given of the filing of said petition and of the time and place of the meeting of 
said commissioners according to the statute in such case made and provided. 
And said commissioners having met at the time and place aforesaid and having 
examined and considered said petition and all other papers in the case, and 
having examined all witnesses produced did find in favor of the said petitioners. 

And thereupon said commissioners having adjourned their said meeting to 
th« day of , a., d , at.. o'clock at having publicly announced 



f)IV. III.] COMBINED DRAINAGE. 249 

kept for that purpose. Said commissioners shall take the oath of office 
before some officer authorized to administer oaths. Said commissioners 
shall be known by the corporate name of Drainage Commissioners of ... . 

District No of the town of . . . . , county of . . . . , state of Illinois, 

and by that name shall be a body politic and corporate, and may sue 
and be sued, plead and be impleaded, contract and be contracted with, 
and shall be the corporate authority of their respective districts. Before 
entering upon their duties as herein provided, the drainage commis- 
sioners shall take and subscribe an oath substantially as follows, viz: 

We, , Drainage Commissioners of Drainage District No , do 

solemnly swear (or affirm) that we will faithfully and impartially perform the 
duties required of us to the b°st of our understanding - and judgment, and make 
assessment of damages and benefits (or benefits as the case may be,) in favor 
of or against the land in said district, according to law. [As amended June 10, 1897.] 

156. Treasurer — appointment and duties of.] § 15#. The 
said drainage commissioneis shall appoint a treasurer, who shall receive 
all funds of the drainage district, paying the same out only on a written 
order, signed by the chairman and countersigned by the clerk of the said 
board of drainage. Said commissioners shall fix the compensation of the 
said treasurer, which shall not exceed two (2) per centum of the amount 
paid out. The treasurer of said drainage district before receiving any 
of said fund shall execute a good and sufficient bond, in double the 
amount that shall probably come into his hands as such treasurer, with 
two or more sureties, to be filed with the town clerk for the benefit of 
the drainage district. 

16. Commissioners fix boundaries — employ engineer.] 1 16. 

In case the drainage prayed for embraces the lands of two parties only, 
the commissioners shall hold their first meeting on or near the lands in 
question, and they shall proceed to view the same, hearing the proofs 
and allegations of the parties on the merits of the case. If an adjourn- 
ment be necessary to employ an engineer, or for other good cause, the 
adjournments shall not, in all, exceed ten days. If the commissioners 

the same did meet at the time and place last aforesaid to further consider 
the premises, having in the mean time gone upon the lands included in the pro- 
posed district and personally examined the same, and having made such changes 
in the boundaries of such proposed district and permitted such additional sig- 
natures to the petition by adult owners of land as desired, said commissioners 
do find that said petitioners who have signed the petition as the same is now 
changed by additional signatures thereto, comprises a majority of the adult 
persons owning land in said proposed district [or as the case may be, J which 
nroposed district according to changes aforesaid embraces the lands bounded 
[or described[ as follows, to-wit: [here describe the lands in conformity with 
the changes made.] 

In witness whereof said drainage commissioners have hereunto set their 
hands this day of , a. d 

Attest: A. B., Clerk. (Signed by drainage commissioners.) 

In making changes by adding signatures to the petition and including additional tracts of land, 
the names should be added to the petition following those of the original petitioners, and the addi- 
t !onal lands to be embraced in the district should be added to the schedule annexed to the petition. 
Whatever is done in this regard, the doings should of the commissioners relating to the same should 
: ». -Lown either by the papers on tile, or the record of proceedings kept by the town clerk. 



250 DRAINS AND DITCHES. [DIV. III. 

shall decide in favor of drainage, they shall fix the boundaries of the 
drainage district to embrace such divisions or subdivisions of land of 
each party as will be benefited by the proposed drainage. 

17. System of drainage — tile drains — engineer.] I 17. 

Upon the organization of a drainage district, the commissioners shall go 
upon the land and determine upon a system of drainage, main outlets of 
ample capacity for the waters of the district, having in view the future 
contingencies as well as the present. Preference shall be given to tile 
drains whenever these will accomplish the purpose, and when open drains 

Record of Proceedings of Commissioners at First Adjourned Meeting. 

Board of Drainage Commissioners District No 

Township of , County of , Illinois. 

A meeting" of the drainage commissioners of the district aforesaid was held 
at , on the day of , a. d , pursuant to adjournment of meet- 
ing held on the day of , a. d for the purpose of further^consider- 

ing the mattsr of the organization of a drainage district on petition of L. M. 
and others. The commissioners having in the mean time gone upon the lands 
included in the proposed district and personally examined the same, and having 
caused a survey and estimates to be made, a map and report of which is 
returned, did proceed and examine said map and estimates and made the fol- 
lowing changes in the boundaries of said proposed district [here set forth such 
changes as are made, if any, and the proceedings had by the commissioners in 
this regard.] 

And thereupon said commissioners further considering the matter of said 
petition did find as follows, the same being put in writing, and duly filed, to-wit: 
[here enter the finding of the commissioners filed. J 

And thereupon said commissioners adjourned the said meeting to the day 

of , a. d. , at .. o'clock, at , for the purpose of making the neces- 
sary examinations and findings, did publicly announce the time and place to 
which they so adjourned. 

Finding by Commissioners at Second Adjourned Meeting. 

Board of Drainage Commissioners District No , 

Township of , County of , Illinois. 

Whereas, on the day of , a. d , a petition addressed to the drain- 
age commissioners of district No , of the town of , county ot , 

state of Illinois, was presented and filed in the office of the town clerk of the 

town of , praying that a drainage district be organized embracing the 

lands within the following boundaries [describe the lands as in the petition.} 
The petitioners representing that they desire. . . . [repeat the language of first 
or orignal finding from this point to and including the description of the lands 
in conformity with the changes made. J 

And said commissioners having adjourned their meeting last aforesaid to the 

day of , a. d , at .. o'clock, at , for the purpose of making 

the necessary examinations and findings, having publicly announced the time 
and place thereof, and having met pursuant to adjournment last aforesaid, do 
find from their own examination that the lands included in the proposed dis- 
trict will be benefited for agricultural and sanitary purposes by the construc- 
tion of a drain [or combined system of drainage as the case may be.] 

In witness whereof said drainage commissioners have hereunto set their 
hands tnis day of , a. d 

Attest: G. H., Clerk. (Signed by drainage commissioners.) 

Record of Proceedings of Commissioners at Second Adjourned Meeting 

Board of Drainage Commissioners District No , 

Township of , County of , Illinois. 

A meeting of the drainage commissioners of the district aforesaid was held 
at , on the day of , a. d , pursuant to adjournment of meet- 



DIV. III.] COMBINED DRAINAGE. 251 

are deemed necessaiy, if it be practicable, these shall follow boundary 
lines, and parallels or right angles as the case may be, provided the drain- 
age shall not be impaired thereby. Unless the district is small, and the 
plans are manifestly of easy determination, a competent engineer shall 
be employed to locate and advise upon the character of the work to be 
done, and report in writing, with maps, profiles and estimates of cost, 
and in a general way, the benefits to accrue to the lands in the several 
localities of the district. The maps and papers showing the final deter- 
mination as to the system of drainage, shall be filed in the clerk's office 
and be recorded in the drainage record. (1) 

ing, held on the day of , a. d , for the purpose of making the 

necessary examinations and findings, and having made a full examination into 
the matter, the said commissioners do find that the lands included in the 
proposed district would be benefited for agricultural and sanitary purposes by 
the construction of a drain [or a combined system of drainage as the case 
may bel which finding is reduced to writing and is in the words and figures 
following, to-wit: [here set forth the finding as made and signed by the com- 
missioners.] 

Whereupon said commissioners do order that a drainage district be and the 
same is hereby organized in pursuance of the petition therefor, comprising the 
lands embraced in the following boundaries [or lands described as follows,] 
to-wit: [here set forth a description of the district by boundaries or description, 
of the tracts of land embraced], and such district is hereby declared fully 

organized, and is designated as drainage district No. f , in township, 

county and state of Illinois. 

A fair construction of sections 13, 14:, 15, of this act would seem to be this, that at the 
first adjourned meeting under section 15, changes may be made in the petition, in which case it might 
involve a further finding of the commissioners upon this changed condition of facts and which 
might also necessitate a further survey and estimates in the case, and this might call for a second 
adjourned meeting as provided in section 15 at which a further consideration and finding by the 
commissioners is contemplated upon which a final order may be entered organizing the drainage 
district ; but in case no changes are made in the petition at the first adjourned meeting then the 
whole subject may be disposed of and the drainage district organized at such first adjourned 
meeting. The various forms here given are adapted to the cas--; where changes are made in the 
petition. In cases where no changes are made in the petition the forms can be varied to suit the 
occasion. 

As presumptions are not usually indulged in by the courts in support of summary proceedings of 
this kind, to any great extent at least, it would seem to be proper that the findings by the com- 
missioners as provided in the foregoing sections of this act snould be supported by proper recitals 
in each case, showing a compliance with the law. In the various forms here given the principle 
aforesaid has been kept in view by full recitals embodying such as are considered essential or 
jurisdictional facts occurring in the proceedings. 

By the constitution as amended by vote of the people at the November election 
in 1578 giving the Legislature power to provide for the organization of drainage districts and 
vest the corporate authorities thereof with power to construct by special assessment from prop- 
erty benefited thereby, there is no limitation upon the legislature as to the mode of forming 
such districts, or as to the agencies or instrumentalities to be used in their creation. An ex- 
press grant of power to the legislature by organic law to do a certain thing without any words 
of limitation or restriction, carries with the law necessary and proper means to make the power 
effective, and the legislature in such case is the sole judge of the means to be emploved to 
promote the end designed. Huston etal.v Clark etal, 112 111., 3U, Blake v. The People, etc. 
109111., 504. 

(1) Form of Engineers Report of Surveys and Estimates. 

To the drainage commissioDers of district No. — of the town of 

county of State of Illinois: 

The undersigned, a civil engineer, having been employed by your said 
commissioners to locate and advise upon the character of the'work to be 
done in the drainage district aforesaid contemplated by said commission- 
ers, do here report the survey thereof with maps, profiles and estimates oc 
cost. 

All of which is respectfully submitted this day of 18 — 

L. M., Civil Engineer. 



"252 DRAINS AND DITCHES. [DIV. in 

18. Procure right of way— Releases— Damages.] § 18. The 

commissioners shall then proceed to procure the right of way 
lor said work from the owners of the land upon which the same 
may pass, so far as they can do so by agreement with said own- 
ers, which release or releases of right of way shall be in writing, 
and shall be a perpetual bar to all claims for damages by the 
grantor or grantors, or their assigns, on account of the construc- 
tion of such work. Such release or releases shall be filed in the 
town clerk's office, and recorded in the drainage record : Pro- 
vided, that should the commissioners be compelled to pay 
damages for the right of way in any lands over which any work 
may run, by virtue of the finding of a jury called to assess dam- 
ages, as hereinafter provided, that then and in that case they 
shall allow damages equitably to other owners of lands through 
which such work may be located, notwithstanding such owners 
may have released such right of way without adequate com- 
pensation. (1) 

19. Jury to assess damages — Yenire— Notice to owners.] § 19. 

Should the commissioners be unable to procure the right of way 
by agreement with the owner or owners of any lands over which 

(1) Form, of Agreement for Bight of Way and Release of Damages by 

Owner of Land. 

This agreement made this day of , 18 — , between the drainage 

commissioners of district No. — in the town of , county of 

State of Illinois, and L. M., of , witnesseth, that whereas a drainage 

district has been organized in said town designated as district No. — com- 
prising lands owned by said L. M., to-wit: [describe the lands], over 
which a drain is desired to be passed according to a plat and survey 
thereof, now on file in the clerk's office, and it is agreed between the 
parties aforesaid that the full amount of damages of said L. M. for right 
of way and in the construction of said drain according to said survey and 

plat are dollars, and said L. M., in consideration of one dollar paid 

by said drainage commissioners does hereby agree to accept said sum in 
full payment of his damages as aforesaid, and to grant and release the 
right of way for said drain on payment thereof, and, which amount when 
paid and receipt thereof indorsed hereon, shall operate as a grant and 
release of the right of way aforesaid. 

In witness whereof said parties have hereunto set their hands and seals 
the day and year first above written. 

A. B., [SEAL.] 
C. D., [SEAL.] 
E. F., [SEAL.] 

Drainage Commissioners. 
L. M., [seal.] 

The law contemplates that the commissioners will proceed at once and procure 
the right, of way before any funds are raised for payment of damages. It cannot be expected 
that full grants and releases will be given by the owner of lands until his damages are paid. 
The foregoing form is suggested as the most convenient that can be devised to meet the pecu- 
liar provisions of the law in this regard. 



DIV. III.] COMBINED DRAINAGE. 253 

the work may be located, they shall file a statement in writing 
with some justice of the peace in the vicinity, requesting him to 
issue a venire for a jury, to assess the damages in such case or 
cases; and it shall thereupon be the duty of the justice to issue a 
venire for a jury of six (6; disinterested land owners to appear at 
his office at a day and hour therein named, not less than five (5) 
nor more than fifteen (15) days from the filing of such statement 
with the justice, for the purpose of assessing the damages in the 
case or cases mentioned. The justice shall cause a notice or 
notices in writing to be served upon the owner or owners of the 
lands in question, informing him or them of the time and place 
when the said case or cases will be tried. Said notices may be 
substantially in the following form : 

To A. B. : 

You are hereby notified that a jury has been called to meet at my office 

in township, county, on the day of A. D. 18 — , 

at o'clock — M., for the purpose of assessing damages in the matter of 

the drainage commissioners of township, county, against 

you ; when and where you can appear and assert your rights in the prem- 
ises, if you desire. C. S. J P. 

Said notice shall be served by a constable, not less than three 
(3) days before the time fixed for trial, in the same manner and 
with like effect as process in civil cases, and his return thereon 
shall show the manner such service was made, and for such 
service he shall be allowed the same fees as for service of process 
in civil cases : Provided, that where it shall be made to appear 
that any of such owners are non-resident, or unknown, notice of 
such proceeding shall be given by publication in some newspaper 
published in said county, two (2) successive weeks prior to the 
time of such hearing, which notice shall be substantially in the 
form given above; and if any such owner shall be # a minor, such 
notice shall be served upon him and also upon his guardian, if he 
shall have one who is a resident of said county : Provided, further, 
that the commissioners may commence the proceedings in the 
county court at any term thereof, either of common law or pro- 
bate.^) # 

(1) Form of Statement and Request by Commissioners to Justice for Venire. 
State of Illinois, \ 

County, / ss - 

To R. S., Justice of the Peace: 
The undersigned drainage commissioners of district No. — , in the town 

of , in the county aforesaid, having applied to A. B., the owner of 

lands in said drainage district No. — , to procure the right of way for a cer- 
tain drain over said lands, over which the work of said drain has been 
located pursuant to the statute, and being unable to procure the right of 
way therefor by agreement with said A. B., we do request of you, said 



254 DRAINS AND DITCHES. [DIV. III. 

20. Trial— Challenges— Verdict— Transcript to be filed.] § 20. 

When the jury shall appear, as provided in the foregoing section, 
the trial shall be conducted as other cases before a justice 
of the peace or county court, as the case may be. Either party 
may have the same number of challenges, and for the same 
causes as in other cases, before justices of the peace or the county 
court, as the case may be, and if notice shall not have been given 
according to law, or for any other good cause, the court may con- 
justice iu the vicinity, to issue a venire for a jury to assess the damages in 
such ease. 
Witness our hands, this day of , 18- 



^'5-') Drainage 
E E ) Commission* 



Commissioners. 

Form of Venire for Jury. 
State of Illinois, \ 

County, | ss ' 

The People of the State of Illinois to any constable of said county, Greet- 
ing : 
We command you to summon six disinterested landowners having the 

qualifications of jurors to appear before me, at my office at , on the 

day of , A. D. 18—, at o'clock, — M., for the purpose of 

assessing the damages sustained by A. B., owner of land over which the 
drainage commissioners propose to locate and construct a drain [or com- 
bined system of drainage] in drainage district No. — , in the town of ; 

in said county, and have you then and there this writ. 

Witness my hand, this day of , 18 — . 

John Doe, Justice of the Peace. 

The question is raised, whether the jury in this case should not consist of twelve 
persons, as in other cases where the compensation is not made bv the state. The proceeding 
before the justice is not a trial according to the recognized definition of the term. That the leg- 
islature have by this act styled it a trial cannot change the manifest intention of the framers of 
the constitution, bee Const . Art. II. § 13. 

As to manner of conducting cases before justices of the peace, challenges and 
empanneling juries, see Haines' Treatise on the subject of " Trial and Incidents Thereto " 
See also same book in regard to duty of constables under head of" Service and Return of Pro- 
cess," " Constable's Fees." 

Objections to defective notices in proceedings under the Drainage Act will be waived 
by subsequent appearance. Oilkerson v. Scott, 76 111. R. 509. 

Form of Verdict of Jury. 
State of Illinois, 1 In Justice Court, before A. B. 

County, j " Justice of the Peace. 

In the matter of the assessment, of damages consequent upon the construc- 
tion of a drain [as the case may be] over the lands iu drainage district 

No. — , in the town of , in said county, described and owned as 

follows, viz : 



DESCRIPTION OF LAND- 



OWNED BY 



We, the jury, summoned to assess the damages in the above cause, and 
having taken the oath required by law, and having heard the evidence 



DIV. in.] COMBINED DRAINAGE. 255 

tiuue the case from time to time, till proper notice shall have been 
given, or the case is ready for trial. The jury shall hear the evi- 
dence offered in the case as to the value of the laud proposed to 
be taken, and all damages consequent upon the construction of 
the proposed woik, and may go upon the premises for the purpose 
of viewing them ; and they shall return as their verdict the 
amount of damages found, if any, in favor of the owner or own- 
ers and against the commissioners, and the justice of the peace or 
county judge shall enter judgment for the amount of such ver- 

offered, as to the value of the lauds proposed to be taken, and ail damages 
consequent upon the construction of the proposed work, and having 
visited the lands [if such is the fact] over which the proposed improve- 
ment is to pass, to assess the damages that we deem the claimants are 
entitled to, as follows : 

To O- P., on laud above described owned by him, the sum of dol- 
lars. 

Given under our hands this day of , A. D. 18—. 

{Signed by the Jurors.) 

It may be well in each separate verdict to set out a description or" all the lands in question, 
with names of owners, as suggested in the proceeding form, concluding with a separate verdict 
or assessment as to each owner. 

Where a juror is discharged in. the course of the proceeding and another substi- 
Suted in his place without the c nisent, or in the aosence of parties interested, it is a fatal error. 
Oilkerson v. Scott, 76 III. R. 509, 

Form of Docket Entry of Justice in Proceeding to Assess Damages 

for Drain. 
St ateof lHrnois, j gg Before Q g ^ Jugtice of the peace 

In the matter of application of drainage commissioners] 

of district No. — , iu the town of , for assess- > 

ment of damages of A. B., to laud for drain. J 

18 — , Statement of draiuage commissioners filed requesting jury 

to assess damages of A. B., to his land by reason of constructing drain 

over same ; venire issued, day of hearing 18 — , at — o'clock, — M ; 

notice issued to A. B. of time of empanneling jury ; returned, served by 
constable as follows, [give copy of return.] 

18 — , Parties appear ; venire returned and following jury empan- 

neled, [give names]. Upon hearing the allegations and proofs of the 
respective parties the jury return their verdict that [set forth substance of 
verdict.] It is therefore considered by the court that [name of owner] 
have and recover, to be paid by said drainage commissioners, the sum of 

— dollars as damages for [state for what] 

C. S., Justice of the Peace. 

Form of Certificate to Transcript of Foregoing Docket Entry. 
State of Illinois, \ co 

County, / ss ' 

I, C. S., a justice of the peace in and for said county, do hereby certify 
that the foregoing is a true and correct transcript of the proceedings 
therein set forth as the same are entered and appear recorded in my 
docket, and that the same is correctly copied therefrom. 

Given under my hand and seal this day of 18 — . 

C. S. Justice of the Peace, [seal.] 



256 DEAINS AND DITCHES. [DIV. Ill- 

diet, which judgment shall be final and conclusive. Vacancies in 
the panel of jurors, from whatever cause, shall be filled the same 
as vacancies in other cases, but vacancies shall, in all cases, be 
filled by freeholders, and the same jury shall hear and determine 
all cases for which the venire was issued and shall return separate 
verdicts as to each owner or joint owner ; and the justice or judge 
shall thereupon file, in the office of the clerk of the drainage com- 
missioners, a certified transcript of the proceedings before him in 
each case, which shall be recorded in the drainage record. 

SPECIAL ASSESSMENT. 

21. Special assessment for benefits by classification of lands* 

§ 21. As soon as the plans for the work have been determined, 
the commissioners shall proceed to make special assessments for 
benefits by classifying the lands in the district in tracts of forty 
acres, more or less, according to the legal or recognized subdi- 
visions on a graduated scale, to be numbered according to the 
benefits to be received by the contemplated drainage. The tracts 
of land which will receive most and about equal benefits shall be 
marked one hundred (100), and such as are adjudged to receive 
less benefits shall be marked with a less number, denoting its per 
cent, of benefit. This classification, when established, as herein- 
after provided, shall remain as a basis for such levy of taxes as 
may be needed for the lawful and proper purposes of the drainage 
district. In districts heretofore formed, which have made one or 
more levy of taxes, and a new levy is required, the classification of 
lands on the graduated scale shall be made to conform as near as 
may be to the former proportionate assessment ; but if the com- 
missioners believe from experience and results, that the former 
assessment was not fairly adjusted on the several tracts of land 
according to benefits, then the commissioners shall disregard the 
proportions of the former assessment and make the new classifi- 
cation in accordance with such proportions as should have b^en 
made originally. Provided, that in any district where a classification 
has once been made, and the commissioners believe from experience 
and results that such former classification was or is not fairly adjusted 
on the several tracts of land according to benefits, which may be 
derived from new or additional assessments, then the commissioners 
shall disregard such former classification and make a new classification 
in accordance with justice and right. When the classification is com- 
pleted it shall be properly tabulated, or shown by a map, or both, and 
filed in the clerk's office for inspection. (1). [As amended 1891. 

(1) The classification of lands under section 21 may be made in writing and tabu- 
lated in proper form, or it mav be dnne by a map thereof designating each tract with the num- 
ber on graduated scale marked thereon, or it may be shown both in writing and by map. 
When in writing, the following is the proper form : 



DIT. III.] SPECIAL ASSESSMENT. 257 

22. Ditch previously constructed— May be utilized.] § 22. 

When it shall appear to the commissioners that a drain or ditch 
has been, in whole or io part, previously constructed for the pur- 
pose of draining or protecting from overflow any land to be 
affected by the work proposed under this act, and such original 
work can be advantageously utilized, they may estimate the value 
of such old ditch, and allow the owner proper credit for the same: 
Provided, no allowance shall be made for any ditch which was con- 
structed out of the swamp and overflowed land funds, or other 
public funds. 

23. Notice of meeting to hear objections.] § 23. The com- 
missioners shall cause to be personally served upon all parties 
owning land to be affected by the proposed work, or other prop- 
erty liable to be taxed under this act, and residing in the county, 
a written or printed notice of the time when, and place where 
they will meet to hear any and all objections that may be made to 
the classification of lands on the graduated scale, which notice 
shall be served, in case of residents in the county, not less than 
three (3) days before the time set for hearing, by delivering a copy 
thereof to the party to be served; and the commissioners shall 
cause to be sent by mail such notice to all owners who do not re- 
side in the county, whose land is to affected, in case their post- 
office address is known to the commissioners, or any of them, or 
can be ascertained by use of reasonable diligence; and in case 

Form of Special Assessment for Benefits by Classification of Lands. 

State of Illinois,] 

County, V Drainage district No- 
Town of j 

The plans for work in drainage district No. — aforesaid, having been 
determined by the commissioners, they do make a special assessment for 
benefits, classifying the lands in the district on a graduated scale num- 
bered according to the benefits to be received by the contemplated drain- 
age district. The tracts of land which receive most and about equal 
benefits being marked 100, and such as are adjudged to receive less benefits 
are marked with a less number denoting each persons benefit, as follows : 



DESCRIPTION OF TRACT OF LAND. 


NO. OF 
ACRES. 


NO. ON 
GRADUATED SCALE. 


N. E. % N. E. !4 Sec. 1. 
S. E. \i S. E. 14 Sec. 1. 


40 
40 


100 

75 



Witness the hands of said drainage commissioners this day of 

18—. 



1st • A B "I 

L.M., Clerk. ■ C.' d" L n Drainage 

' E F ( Oommissiont 



258 DRAINS AND DITCHES. [d.V. II. 

the land of any non-resident is to be affected, then publication 
shall be made in some newspaper published in said county, for 
three (3) successive weeks prior to the time of such hearing, and 
such meeting to hear objections may be adjourned from day to 
day by public announcement of the commissioners, made at the 
meeting, until all objections are heard; and all persons duly noti- 
fied of the first day of meeting, as hereinbefore provided in this 
section, shall take cognizance of all such adjournments without 
further notification. The affidavit of any credible person or per- 
sons, that he has or they have posted such notices hereinbefore 
required, and the certificate of the publishers of such newspaper 
as to such publication, shall be sufficient evidence of such 
facts. (1) 

24. Hearing objections— Corrections— Appeal to supervisors. 

§ 24. At the time of meeting lor review the commissioners shall 
hear whatever objections may be urged by any person interested, 
and if satisfied that any injustice has been done in the classifica- 
tion of the several tracts of land or any of them, they shall cor- 
rect the same in accordance with what is right; but if not so sat- 
isfied, they shall leave the classification as first made, and enter 
an order to that effect. Any person appearing and urging objec- 
tions, who is not satisfied with the decision of the commissioners, 
may appeal from their decision to three supervisors of the county, 
within ten days after the decision of the commissioners was ren- 
dered, by filing with the town clerk a bond with security con- 
ditioned to pay such tax as may finally be levied upon the land in 

(1) Form of Notice to Parties Owning Land Affected by Proposed Drain- 
age Work. 

To 

You are hereby notified that the Drainage Commissioners of District 

No. — , of the town of , county of , State of Illinois, will meet on 

the day of , 18 — , at the hour of — o'clock, at to hear any 

and all objections that may be made to the classification of lands on the 
graduated scale in said district, made by said commissioners for the pur- 
pose of special assessments for benefits in consequence of the construct ion 
of a proposed drain [or combined system of drainage, as the case maybe,] 
in the said district, when and where you can appear and make objections 
if you desire-. 

Dated this day of , A. D. 18—. 

A,t H! : H., oierk. a§::}^j=f. 



i Commissioners. 



It ninst. foe borne in mind that a record of the proceedings of the commissioners i* 
required to be kept by the clerk in all cases. Whenever the commissioners meet and transact 
business, or make any orders, the proceedings should be entered in the drainage record. Forms 
for record of proceedings heretofore given, may be consulted for this purpose and used by chang- 
ing the same according to the facts, and which will probably suffice as a precedent in all case^ 



DIV. III.] SPECIAL ASSESSMENT. 259 

question, and the costs occasioned b}^ the appeal, incase the com- 
missioners shall be sustained by the board of appeal. (1) 

25. Summons to supervisors— Hearing appeal— Correction.] § 

25. It shall be the duty of the town clerk to summon three super- 
visors of the county living nearest the office of the town clerk, but 
outside his town, and who are not interested in any lands or work 
in said district or of kin to any of the parties interested, to meet 
at his office at a time not more than ten days from the filing of. 
the appeal bond, for the purpose of hearing any appeal or appeals 
that may be taken from the decision of the commissioners. Should 
any of said supervisors fail to appear at the time named, the clerk 
may adjourn said meeting for a period not exceeding five days, 
and summon another supervisor or supervisors to fill the vacancy 
or vacancies. Whenever the supervisors summoned to hear 

(1) Form of Order Confirming Assessment. ; 
State of Illinois, | 

County, f ss. Drainage District, No. — . 

Town of J 

We, the Drainage Commissioners of Drainage District No. — . of the 

town of , having heard the objections of, {here state the names of all 

persons objecting,'] to the special assessment and classification of lands 
made by us {here state the purposes of the assessment] in Drainage Dis- 
trict No. — , in said town, are of opinion that said assessment and classifi- 
cation was in accordance with justice and righ , and we do hereby in all 
things confirm the same. 

Dated this day of , A. D. 18-. A. B., ) T) rainae .p 

Attest* C D >- uramage 

L.' M., Clerk. E. F.',' J Commissioners. 

Form of Appeal Bond. 

Know all men by these presents, that we, A. B. and C. D., of the town 

of , county of , and State of Illinois, are held and firmly bound 

unto the drainage commissioners of district No. — , of the town of -, 

county of , and State of Illinois, and their successors in office, in the 

penal sum of Dollars, which sum well and truly to be paid, we bind 

ourselves, our heirs, executors and administrators, jointly and severally, 
firmly by these presents. 

Signed with our hands and sealed this day of , A. D. 18 — . 

The condition of this obligation is such, that, whereas, the above boun- 
den A. B. has appealed to three supervisors of the county from a decision 

of the drainage commissioners of district No. — , of the town of — - , 

county and state aforesaid, confirming a special assessment and classifica- 
tion made against his land in said drainage district, for the purpose of, 

{here state for what,] which order of confirmation is dated the day of 

, A.. D. 18—. 

Now, therefore, if the above bounden A. B. shall pay or cause to be paid 
the amount of the assessment aforesaid, ami all costs occasioned by this 
appeal, in case said assessment shall be affirmed, then this obligation to be 
void, otherwise to remain in full force and effect. 

A. B., [SEAL.] 
C. D., [SEAL-] 



260 DRAINS AND DITCHES. [DIV. III. 

appeals shall all appear as herein provided, it shall be the duty 
of the town clerk to lay before them the classification as deter- 
mined by the drainage commissioners, and they shall examine the 
same, and hear allegations and testimony in opposition and sup- 
port of the same, and may, if they deem it necessary, visit the 
district and view the lands. If they find the tracts of lands in 
question are marked too high or too low in the classification, they 
shall correct the errors ; but if no injustice has been done, they 
shall confirm the classification as made by the commissioners. 
Their final determination shall be made in writing, and filed with 
the town clerk. The classification, when established as herein 
provided, shall be recorded with other papers on the drainage 
record, and shall be conclusive. (1) 

(1) Form of Summons to Supervisors to Hear Appeal. 
State of Illinois, 

County, \ Drainage district No. 



Lllmois, ] 
County, >• 



Town of 

To A. B., supervisor of the town of- -to C. D., supervisor of the 
town of , and E. F., supervisor of the town of . 

You are hereby summoned to meet at my office at , on , [not 

more than ten days from filing of appeal bond] at the hour of — o'clock 
— M. for the purpose of hearing an appeal taken by G. H. from the decis- 
ion of the drainage commissioners of district No— of the town of in 

confirming a certain assessment and classification against his lands sit- 
uated in said drainage district No. — . 

Given under my hand this day of — , 18 — . 

L. M., Town Clerk, 

Form of Summons to Fill Vacancy. 
State of Illinois, ] 

County, V Drainage District No. — 

Town of J 

To N. O., supervisor of the town of : 

You are hereby summoned to be and appear at my office at , on 

[not exceeding five days from the first meeting] at the hour of — o'clock to 
till a, vacancy caused by a failure of A. B., supervisor, to appear for the 
purpose of hearing an appeal taken by G. H., from the drainage commis- 
sioners of district No — , of the town of , in confirming a special 

assessment and classification against his lands situated in said drainage 
district No.—. 

Given under my hand this day of , 18—. 

L. M., Clerk. 

Form of Order of Supervisors Confirming Decision of Commissioners. 
State of Illinois, \ 

County, / ss * 

Whereas, on the day of ~, 18 — , the drainage commissioners of 

the district No. — , of the town of , entered anorder confirming a 

special assessment and classification of lands against the lands of G. H , 
described as follows: [describe the lands] for the proposed work of con- 
structing a drain [or as the case may be] over said land in drainage 
district No. — aforesaid. And said G. H. prayed an appeal from said 
decision of the commissioners and filed with the town clerk of the town 



DIY. III.] 



SPECIAL ASSESSMENT. 



'2(5 1 



26. Resolution ordering amount to be raised — Special assess- 
ment roll. § 26. The commissioners by resolution shall order 
soch amount of money to be raised by special assessment upon 
tke lands of the district as may be necessary, and such amount 
shall be apportioned among the several tracts in the name of the 
owner when known, according to acreage of each and its figure of 
classification on the graduated scale, so that each tract may bear 
its equal burden in proportion to benefits. (1) 

They shall make out a special assessment roll, hereinafter des- 
ignated tax list, setting down in separate columns the owners' 
names when known, and when unknown, stating unknowm, a 
description of the land, the number denoting the classification, 
the tax, the damages allowed, if any, or any other credit to be 
given to the owner. The balance of tax over credits or of dam- 
ages or other credits over the tax, showing the amount due to the 
district by each land owner on the separate tracts, or, due to the 
lnnd owner by the district, shall be set down in final columns. 
When completed the list shall be filed with the town clerk. The 
tax list may be substantially as follows : 



" SPECIAL ASSESSMENT TAX 


LIST 


OF 


-[i 


iere insert 


name of district.] 


Owners' 
Name. 


Description of 
Land. 


5"? 

~ ID 

M 


H 

f 
a 

5" 


o 
o 

w 


Balance due 
District.... 


Op" 
: <* 


Remarks. 


Sec. 


Tp. 


R. Acs. 
















Dol. 


Cts. 


Dol. 


Cts. 


Dol. 


Cts. 


Dol. 


Cts. 



































of , county of , and State of Illinois, h\< appeal bond in accord- 
ance with the law in such cases. And said town clerk having summoned 
us, the undersigned, three supervisors, of said county, to meet at his 

office on the day of 18—, to hear said appeal ; and having met at 

the time and place aforesaid, and having had laid before us the classifica- 
tion of lands in question, and examined the same, and having heard the 
testimony offered in support of such assessment and classification appealed 
from, and in opposition thereto, and having visited the lands, [if such be 
the easel we do affirm the action of the drainage commissioners, in con- 
firming the special assessment against the lands of the said [or as 

the case may be~\. 

Witness our hands this day of 18 — . 

A. B., Supervisor, town of 

C D., Supervisor, town of 

E. F., Supervisor, town of 

(1) Form of Resolution by Commissioners Ordering Money to be Raised. 
Resolved by the drainage commissioners of district No. — , of the (own 

of , county of , State of Illinois, that it be and is hereby ordered 

that the amount of $ be raised by special assessment upon the lands ol' 



'2G2 DHaIns and ditches. [div. m. 



APPEAL TO COUNTY COURT. 
Section. 

27. Who may appeal — Bond — Proceedings — Cost. 

28. Appeal not to delay tax. 

27. Who may appeal— Bond— Proceedings— Cost.] § 27. Any 

party against whose land a tax lias been thus levied, may, within 
ten days after the list has been deposited with the town clerk, 
appeal to the county court by filing a bond in double the amount 
of tax appealed from in the county clerk's office, but the appeal 
shall be upon the ground only that such tax is a greater amount 
than the benefits to accrue to the land in question by the pro- 
posed drainage. Appeals taken to the county court, under the 
provisions of this act, may be heard at any term thereof: Provided, 
ten days has intervened from the time of taking such appeal and 
the first day of the term, and if not ten clays, then such appeal 
shall be heard at the next term, and trial shall be conducted as in 
other cases of appeals. If the court finds that the tax exceeds the 
benefits to accrue, the court shall modify the s? me, so as to make it 
equal to the benefits, and the costs may be apportioned by the court 
in its discretion : Provided, that in any proceedings under this act, 
where the costs have been unnecessarily or improperly made, such 
costs may be adjudged against the party making the same, but the 
taking of any appeal by any person or persons, as herein provided, 
shall not operate to delay the collection of any tax from which no 
appeal has been taken, nor delay the progress of the work. (1) 

the district aforesaid as the same may be necessary, and that such amount 
be and is apportioned among the several tracts in the name of the owner 
thereof when known according to acres of each and its figures of classifica- 
tion on the graduated scale so that each tract may bear its equal burden 
in proportion to benefits. 

(1) Form of Appeal Bond in Appeal to County Court. 

Know all men by these presents, that we, A. B. and C. D., of the town of 

, county of , and State of Illinois, are held and firmly bound 

unto the drainage commissioners of district No. — , of the town of , 

county of , and State of Illinois, in the penal sum of dollars, 

which sum well and truly to be paid, we bind ourselves, our heirs, execu- 
tors and administrators, jointly, severally, and firmly by these presents. 

Signed with our hands and sealed, this day of . 18 — . 

The condition of the above obligation is such, that, whereas, theabove 

bounden A. B. has appealed to the county court of county, State of 

Illinois, from the decision of, [names of supervisors,] three supervisors in 
the matter of, [here state matter.] 

Now, therefore, if the said A. B. shall pay or cause to be paid, the 
amount of whatever judgment sball be rendered against him in thecounfv 
court, in the matter of said appeal, then this obligation to be void, otlje'- 
wise to remain in full force and effect. 

A. B., [seal.] 
C. D., [seal.] 



DIY. III.] COLLECTION AND APPLICATION OF TAX. %o 

28. Appeal not to delay tax.] § 28. The taking of any ap- 
peal by any person or persons, as herein provided, shall not ope- 
rate to delay the collection of any tax from which no appeal has 
been taken, nor delay the progress of the work. 

COLLECTION AND APPLICATION OF TAX. 
Section. 

29. Tax, when payable — Installments. 

30. Tax list filed — Treasurer to give bond. 

31. Treasurer to keep account of moneys in books. 

32. Delinquent list — Sale — Commissioners may purchase. 

33. Collector to give bond — Treasurer may receive payment. 

34. Division into sections— Letting work. 

35. Notice of letting— Commissioners not to be interested. 

36. Work done by tax payer — Credit therefor — Receipt. 

37. Excess above tax to be paid before entry on land, 

38. Money ir ay be used to compromise suits. 

29. Tax, when payable— Installments.] § 29. It shall be 
competent for the commissioners to order the tax to be paid in 
installments of such amounts and at such times as will be con- 
venient for the accomplishment of the proposed work; otherwise, 
the whole amount of such tax shall be payable immediately upon 
such confirmation, and shall be a lien upon the lands assessed 
until paid; and such taxes shall draw interest at the rate of eight 
(8) per cent, per annum from the time they shall become payable 
till they are paid, and such interest may be collected and enforced 
as part of the taxes. (1) 

30. Tax list filed— Treasurer to give bond] § 30. Immedi- 
ately after the commissioners shall have filed their tax list, the 
clerk shall make out and certify to the treasurer a copy of said 
tax list; and the said treasurer shall execute bond to the People 
of the State of Illinois for the use of all persons interested, in a 
sum not less than twice the amount of taxes levied, conditioned 
for the faithful performance of his duties as treasurer of said 
drainage district, and that he will faithfully account for all money 
that, by virtue of said office, shall come to his hands. Such bond 
shall be with such sureties as may be approved by the commis- 



(1) The order of the drainage commissioners for paying tax oy installments, 
under sectioji 2'J, should properly be made by an entry thereof in the drainage record, and may 
be in the following term: 

Form of Order to Pay Tax in Installments. 
Ordered by the drainage commissioners that the tax levied in the dis- 
trict, in pursuance of resolution of the commissioners on the day of 

, 18 — , and shown by special assessment tax list filed with the town 

clerk on the day of , 18 — , to be paid iu installments of $ — each, 

on or before the] here state the lime of payment for each installment. ] 



%tik DliAINS A^t) DITCHES. |_DIV. III. 

sioners, and such bond shall be kept and preserved in the town 
clerk's office. In case the supervisor shall fail to give such bond, 
as treasurer, the commissioner may appoint a treasurer until the 
supervisor or his successor shall give such bond.(l) 

31. Treasurer to keep account of moneys in books.] § 31. It 

shall be the duty of the treasurer of every drainage district to keep, 
in proper books to be furnished him by the commissioners, an 
accurate account of all moneys received by him and all disburse- 
ments of the same. He shall pay out no money except upon the 
order of a majority of the commissioners, and he shall carefully 
preserve on file all orders for the payment of money, and as often 
as required by a majority of the commissioners, shall render a 
correct account to them of all matters pertaining to his office, 
with the vouchers and other papers and records in his possession 
as such treasurer, verifying the same, and he shall turn over all 
books, papers, vouchers, money and property belonging to and in 
his hands or under his control as such treasurer, to his successor 

(1) Form of Clerk's Certificate to Treasurer of copy of Tax List. 
State of Illinois, ] 

County, [ Drainage District No. — . 

Town of J 

To A. B.. treasurer of drainage district No. — . 

I, C D., clerk of said drainage district do hereby certify that the fore- 
going is a true and correct copy of the original tax list filed by the drain- 
age commissioners of said district, and now remain in my office. 

Given under my hand this day of , 18—. 

C. D., Clerk. 

Form of Bond of Treasurer of Drainage District. 

Know all men by these presents, that A. B., of the township of . 

county of , and State of Illinois, and C. D. and E. F., as sureties, are 

held and firmly bound unto the People of the State of Illinois for the use 

of all persons interested, in the penal sum of dollars, which sum well 

and truly to be paid, we bind ourselves, our heirs, executors and adminis- 
trators, jointly and severally, firmly by these presents. 

Signed with our hands and sealed this day of , 18—. 

The condition of the above obligation is such that if the above bounden 
A B. shall faithfully perform his duties as the treasurer of Drainage Dis- 
trict No. — , in the township of , county of , and State of Illi- 
nois, and will faithfully account for all moneys that by virtue of said 
office shall come to his hands, then this obligation to be void, otherwise 
to remain in full force and effect. 

A. B., [seal.] 

C. D., [SEAL.] 
E. F., [SEAL.] 

This bond and the sureties approved this day of , A. D. 18—. 

A T eS lf ni v w^'l Drainage 

±j. M., cierK. t K I Commissioners, 



BIV. III. J COLLECTION AND APPLICATION OF TAX. 265 

in office, and the commissioners shall have the right to examine 
the same at all times. (1) 

32. Itelinquent list— Sale— Commissioners may purchase.] 

§ o2. It shall be the duty of the treasurer of each and every 
drainage district, heretofore or hereafter organized, to make out a 
certified list of all delinquent lands upon which the tax or any in- 
stallment or any part thereof remains unpaid, and the same shall 
be by him, on or before the 10th day of March next after the same 
has become due, returned to the county collector of the county or 
counties in which such land shall lie. And it shall be the duty 
of the collector to whom such return is made, to transfer the 
amnunt thereof, from such return, to the tax books in his hands, 
setting down therein, opposite the respective tracts or lots, in 
proper columns prepared for that purpose, the amount thereof 
against each tract or lot, and the like proceedings shall be had, 
and with like force and effect in the collection of such delinquent 
tax or installment, and the sale of said lands for the non-payment 
thereof, as in ordinary collections of State and county taxes and 
the sales of real estate by them, for such non-payment and of re- 
demption from such sales. At the sale of lands for any delin- 
quent drainage assessment or tax, the commissioners may become 
the purchasers or may designate or appoint some person to attend 
and bid at such sale on behalf of said district. (2) 

(1) Form of Order of Drainage Commissioners on Treasurer. 
State of Illinois, ] 

County, >■ ss. Drainage District No. — . 

Town of J 

To the Treasurer of Drainage District No. — . 

Pay to A. B. or order the sum of dollars for [here state on what ac- 
count order is drawn.] 

Dated this day of , A. D. 18-. R. L., £ Drainage 

H. P.] 

(2) Form of Delinquent List. 
State of Illinois, 
County, Vss. Drainage District No. — 



" f Commissioners. 



T()W 21 of 



nois, J 

nty, J- 



I, A. B., treasurer of the drainage district No. — , of the town of 



county of , and State of Illiuois, do hereby certify that the following 

is a correct list of delinquent lands upon which the assessments remain 
unpaid for [here state for what]. 



NAMES OF OWNERS. 



DESCRIPTION 
OF LAND. 



AMOUNT ASSESSED 
AND DUE. 



In witness whereof I have hereto set my hand this day of , 18 — . 

A. B., Drainage Distri t Treasurer. 



2GB DRAINS AND DITCHES. [DIV. 1:1. 

33. Collector to give bond —Treasurer may receive pay in out.] 

§ 33. When the certified list of such delinquent lands has come 
into the hands of the county collector, the said collector,iUnless he 
is the treasurer of the district, shall execute to the drainage com- 
missioners for the use of said district a bond in a sum not less 
than double the amount of the delinquency as shown by said list, 
conditioned for the faithful performance of his duties as collector 
of said delinquency, and that he will faithfully account for all 
moneys that shall come into his hands by reason of the delin- 
quent tax or installments, which bond shall be, with such secur- 
ities as may be approved by the commissioners, filed in the clerk's 
office, and recorded in the drainage record. Notwithstanding the 
return of such delinquent list the treasurer of the drainage dis- 
trict may receive payment of any such delinquent assessment or 
tax, interest and costs, and receipt for the same, but shall keep a 
memorandum thereof, and on or before the day of sale fixed by 
the county collector for sale of lands for non-payment of taxes, 
shall present said memorandum or list to the county collector, 
for the purpose of having the same checked or marked paid on 
the delinquent list in his hands, and all accounts collected by the 
county collector by sale or otherwise, after deducting his fees, 
shall be paidoverto the treasurer of said drainage district, except 
as otherwise provided herein. (1) 

Form of Drainage District Treasurer's Certificate of List of Delinquent 

Lands. 
State of Illinois, 

County, \ ss. Drainage District No. — . 

Town of 



I, A. B., treasurer of drainage district No. — aforesaid, do hereby cer- 
tify that the foregoing (or annexed) is a correct list of all delinquent lands 
iu said drainge district upon which the tax assessed thereon, or any in- 
stallments, or any part thereof remains unpaid. 

Given under my hand this day of , 18—. 

A. B., Drainage District Treasurer. 

(1) Form of Bond of County Collector to Drainage Commissioners. 

Know all men by these presents that we, A. B., C. D., and E. F., ;ire 
held and firmly bound unto the drainage commissioueis of drainage dis- 
trict No. — , in the town of , county of , State of Illinois, lor 

the use of said district, in the sum of dollars, which sum well and 

truly to be paid, we bind ourselves, our heirs, executors and administra- 
tors, jointly, severally, and firmly by these presents. 

Sealed with our seals and dated this day of , 18 — . 

The condition of the above obligation is such, that whereas the above 

bouuden A. B., county collector of the county aforesaid, did on the 

day of , 18 — , receive from the treasurer of drainage district No. 

— aforesaid, a certified list of all delinquent lands upou which the tax or 
any installment, or any part thereof remains, as appears by the certificate 



DtV. III. ] COLLECTION AND AMPLICATION OF TAX. 267 

34. Divisions into sections— Letting work.] § 34. The said 
commissioners, when they have procured the right of way for the 
proposed work, may divide the ditch or ditches into sections a 
quarter of a mile in length, except the remainder or remainders, 
alter taking out as many full sections as the work contains, which 
remainder or remainders may be let with the adjoining section, 
or separately, as the commissioners may think best; or they may 
let the entire work in one or more contract: Provided, that in 
case the work is on the farms or lands of two parties only, the 
amount on each shall be let separately, and the owners of the land 
shall have the preference, where the bids are equal, to construct 
that part belonging to his own land, and this rule may be applied 
to a larger number, if the commissioners shall unanimously agree 
to the same. 

35. Notice of letting— Commissioners not to be interested.] 

§ 35. x4.s soon as practicable the commissioners shall cause notice 
to be given of the time and place of the letting, and of the kind 
and amount of work to be done, and where plans of the same may 
be seen, by publication for twenty days in some newspaper 
printed or published in said county. Said bids shall be under 
seal, and the commissioners may reject any and all bids, and may 
continue the letting from time to time, if, in their judgment, the 
same be necessary. If the cost of the entire work will not exceed 
five hundred dollars ($500), the commissioners shall let the same 
at such time and in such manner as they may think best. Said 
commissioners shall not, during their term of office, be interested, 
directly or indirectly, in any contract for the construction, repair 
or maintenance of any work in such drainage district, nor in the 
wages nor supplies to men or teams employed on any work under 
their jurisdiction. Any person or persons taking any work under 
contract, shall, on the completion thereof, according to contract, 
be paid for such work by the treasurer, upon the order of the 
commissioners. If any person or persons to whom any portion 
of said work shall be let as aforesaid, shall fail to perform said 

of said treasurer th reto, unpaid in said district, now, therefore, if the said 
A. B. shall faithfully perform his duties as collector of said delinquency, 
and shall faithfully account for all moneys that shall come into his hands 
by reason of the delinquent tax or installment aforesaid, then this obliga- 
tion to be void, otherwise to remain in full force and effect. 

A. B., [seal.] 
C. D., [seal.] 

E. F., [SEAL.] 

Approved by us, the drainage commissioners of district No. — . 



-d * g ' I Drainage 

L M I Commissioners. 



; 26S DRAINS AND DITCHES. [DIV. III. 

work, the same shall be re-let in such manner as the commission- 
ers may think best. ( 1 ) 

36. Work done by tax payer -Credit therefor— Receipt.] 

§ 36. In case any person from whom taxes are due contracts to 
do any work, and said work is done according to contract, the com- 
missioners shall give said person a receipt for so much of said tax 
as said work amounts to, and said receipt may be received by the 
treasurer as payment of so much of said tax. 

37. Excess above tax to be paid before entry on land.] 

§ 37. All excess, if any, of allowances for right of way and dam- 
ages over the amount of tax against the same person, shall be paid 
or tendered to the owners thereof, before the commissioners shall 
be authorized to enter upon said lands for the construction of any 
work thereon; in case the owner is unknown, or there shall be a 
contest in regard to the ownership of the land, or the commission- 
ers cannot, for any reason, safely pay the same to the owner, they 
may deposit the same with the clerk of the county court, and the 
court may order the payment thereof to such party as shall appear 
to be entitled to the same. 

38. Money may be used to compromise suits.] § 38. The 

commissioners may use money belonging to the district for the 
purpose of compromising suits and controversies arising under 
this act, and in employment of all necessary agents and attorneys 
in the prosecution or defense of said operations, and to pay all 
necessary employes : Provided, the acts of the commissioners 
shall be uniform as to the rights of all persons and property. 

GENERAL DUTIES OF COMMISSIONERS. 
Section. 

39. Commissioners may go upon lands for examination — Penalty. 

40. Use of highway — Benefits to highway or railroad — Tax. 
40J. Notice to construct bridge — Suit — Appeal. 

41. When work constructed how kept in repair and maintained. 

42. Rights ot land owners — Enlargement of district. 

43. Sub-districts may be formed — Main ditches may be used. 

44. Willful injury to drain — Penalty — Damages. 

45. Damages to drain by animals — Liability of owner. 

\ 46. Liability of commissioners for failure to perform duties — Penalty. 
47. Commissioners and treasurer to make annual report. 

39. Commissioners may go upon lands for examination — Pen- 
alty.] § 39. The commissioners may authorize any employes 

( 1 ) Form of Notice of Letting Contract. 
Public notice is hereby given that the drainage commissioners of dis- 
trict No. — , of the town of , county of , and State of Illinois, 

will receive bids, undersea!, upto noon of the day of , A. D. 18 — , 

at for the [here state kind and amount of work to be done]. Plans 



DIV. II.] GENERAL DUTIES OF COMMISSIONERS. 269 

to go upon the lands lying within said district, for the purpose of 
examining the same and making surveys; and after payment or 
tender of compensation allowed, may authorize all contractors, 
with their servants, teams, tools, instruments or other equipments, 
to enter for the purpose of constructing such proposed work, and 
may ever thereafter enter upon said lands as aforesaid, for the pur- 
pose of maintaining or repairing such work, doing no more dam- 
age than the necessity of the occasion may require; and any person 
who shall willfully prohibit or prevent any of the aforesaid per- 
sons from entering upon such lands for the purpose aforesaid, 
shall be fined in a sum not to exceed twenty-five dollars ($25) per 
day, for such hindrance, to be collected as other fines. 

40. Use of highway— Benefits to highway or railroad— Tax.] 

§ 40. The commissioners shall have the right to use any part of 
the right of way of any public highway for the purpose of the 
work to be done, provided such use will not permanently destroy 
or materially impair such public highway for public use ; and if 
in the construction of said work any public highway or railroad or 
any part of the same will be benefited, the commissioners may 
assess to such public road or railroad such sum or sums as will be 
just and equitable for such public road or railroad to pay in pro- 
portion to the benefits received ; which shall be determined by 
estimating the amount of benefits to the entire district, including 
the benefits to such railroad or public road ; and also the benefit 
to the railroad or the public road, then the fractional figures ex- 
pressing the ratio between the sum of the benefits for the whole 
district, and the sum found to be the benefit to the railroad or public 
road, shall express the proportional part of the corporate taxes of 
the district to be paid by such railroad or public road, as the case 
may be. Such proportional classification shall be subject to like 
review and appeals as is provided for individual land owners. The 
amount of such road tax shall be paid out of the road and bridge 
tax of the town or district in which the public highway or part 
benefited lies.(l) 

of said work are on file at [state where], wnere the same may be seen. 
The said commissioners reserve the right to reject any and all bids. 

Dated at , this day of . A. D. 18—. 

AUfSl: A.B.,) Drainage 

L-*-. Clerk. C.D..J Comm^sion'ers. 

(1) Form of Notice to Railroad Authorities to Build Bridge. 

To the authorities of the railroad: 

You are hereby notified that a bridge [or culvert] is deemed necessary 
to be made on said railroad [or as the case may be~\ at [here describe the 
place] for the use [or protection] of the the work of a combined system of 



270 DRAINS AND DITCHES. [l)IV. III. 

40 J. Notice to construct bridge— Suit— Appeal.] § 40J. The 
commissioners shall have the power and are required to make all 
necessary bridges and culverts along or across any public highway 
or railroad which may be deemed necessary for the use or protec- 
tion of the work, and the cost of the same shall be paid out of the 
road or bridge tax, or by the railroad company, as the case may 
be : Provided, however, notice shall first be given to the road or 
railroad authorities to build or construct such bridge or culvert, 
and they shall have thirty days in which to build or construct the 
same ; such bridges or culverts shall in all cases be constructed so 
as not to interfere with the free flow of water through the drains 
of the district. Should any railroad company refuse or neglect to 
build or construct any bridge or culvert as herein required, the 
commissioners constructing the same may recover the cost and 
expense therefor in a suit against said company before any justice 
of the peace or any court having jurisdiction, and reasonable at- 
torney's fees may be recovered as a part of the costs. The proper 
authorities of any public road shall have the right to appeal the 
same as provided for individual land owners. 

41. When work constructed how kept in repair and maintained. 

§ 41. After the completion of the work the commissioners shall 
thereafter keep the same in repair ; and if they find by reason of 
error in locating or constructing the ditches, or any of them, or 
from other causes the lands of the district are not drained or pro- 
tected as contemplated, or some of them receive but partial or no 
benefit, they shall use the corporate funds of the district to carry 
out the original purpose, to the end that all the lands so far as 
practicable shall receive their proper and equal benefits as con- 
templated when the lands were classified. If it be necessary to 
clear and enlarge natural or artificial channels lying beyond the 
boundaries of the district to obtain a proper outlet, the commis- 
sioners shall use the corporate funds for this purpose, and if the 
necessary privileges cannot be obtained for this by agreement, the 
commissioners may acquire the same by condemnation under the 

drainnge [or, as thecasemay be], being constructed in the vicinity, under 
tbe charge and direction of the drainage commissioners of district No. — , 
in the town of , county of , State of Illinois, and that yon are re- 
quired, in pursuance of the statute in such case made and provided, to 
build [or construct] such bridge [or cuivert] within thirty days. In de- 
fault thereof, the said commissioners will proceed and construct the sameat 
the cost and expense of said railroad, as the law provides. 

Given under our hands, this day of , 18 — . 

Attest: A. B.,) ^ n . na 

e.H, Clerk. ^ajcomSer. 



DIV. III.] GENERAL DUTIES OF COMMISSIONERS. 271 

act for exercising the right of eminent domain : Provided, in all 
such cases if sufficient fund s are not on hand the commissioners 
shall make a new tax levy. 

42. Rights of land owners — Enlargement of district.] § 42. 

Nothing iu this act shall be construed to forbid land owners within 
the district to more completely drain their land by using the 
common drains as outlets to latteral drains ; and the owners of 
land outside the drainage district, or another drainage district, 
may connect with the ditches of the district already made, by the 
payment of such amount as they would have been assessed if origi- 
nally included in the district; or if such connection shall by in- 
crease of water require an enlargement of the district ditches, then 
the outside owners of land so connecting, or other drainage district 
as may be, shall pay the cost of such enlargement. If indi- 
vidual land owners outside the district shall so connect, they shall 
be deemed to have voluntarily applied to be included in the district, 
and their lands benefited by such drainage shall be treated, classi- 
fied and taxed like other lands within the district. Drainage com- 
missioners may at anytime enlarge the boundaries of their district 
by attaching new areas of land which are involved in the same 
system of drainage, and require for outlets the drains of the dis- 
trict made or proposed to be made, as the case may be, on petition 
of as great a proportion of the land owners of the area to be 
added as is required for an original district. All changes thus 
made in the district shall be duly noted and shown upon the map 
and recorded in the drainage record. The commissioners shall 
proceed to classify the lands thus added to the district, and such 
lands shall be classified and assessed or taxed with their fair 
proportion of the costs of the work done or to be done in like 
manner and upon the same basis as it would have been made had 
the new area been included in the district at its organization. 

43. Sub-districts may be formed — Main ditches may be used.] 

§ 43. Sub-districts may be formed by owners of land in main 
districts for the purpose of local or more minute drainage, in the 
manner provided in this act for the organization of main dis- 
tricts. Such sub-districts shall have the right to use the ditches 
of the main district for outlets, or, in drainage districts organized 
or proposed to be organized which have one or more lateral drains 
or proposed drains which are independent of each other, except as 
to the main drain or outlet, and which do now or will drain sepa- 
rate areas within said district, it shall and may be lawful for the 
commissioners, at their option, to divide the district into as many 
sub- districts as there are separate areas, for the purpose of making 
assessments of benefits for the work to be done in said sub-dis- 



272 DRAINS AND DITCHES. [DIV. Ill- 

trict. The commissioners shall, on making such division, proceed 
to classify the lands therein and make assessments as in original 
districts, and the funds arising therefrom shall be kept as a sepa- 
rate and distinct fund to be used in the sub-district from which it 
was collected: Provided, the formation of sub-districts on either 
method as above provided shall not operate to release the lands in 
such sub-district from the payment of any assesment or levy made 
prior to such division, nor from any assessment or tax levy which 
may thereafter be made for the completion, maintenance or repair 
of the main work, or for payment of the principal and interest on 
any indebtedness incurred in the main district, nor shall it give 
such sub-district any claim upon the funds of the main district for 
it local use. 

44. Willful injury to drain— Penalty— Damages.] § 44, Any 

person who shall wrongfully and purposely fill up, cut, injure, des- 
troy, or in any manner impair the usefulness of any drain, ditch, 
or other work constructed, established, or belonging to any drainage 
district for the purpose of drainage or protection against overflow, 
may be fined in any sum not exceeding two hundred dollars, to be 
recovered before a justice of the peace in the proper county. All 
complaints under this section shall be in the name of the People 
of the State of Illinois, and all fines, when collected, shall be paid 
over to the proper commissioners, to be used for the work so 
injured, and in addition to these penalties, the person so wrong- 
fully or purposely filling, or in any manner impairing the useful- 
ness of any such drain or drains, or other work, shall be liable to 
the comissioners having charge thereof for all damages occasioned 
to such work, and to the owners and occupants of land for ali 
damages that may result to them by such wrongful act, which may 
be recovered before a justice of the peace, if within his jurisdic- 
tion, or before any court of competent jurisdiction. (1) 

45. Damages to drain by animals— Liability of owner.] §45. 

Whenever an owner or occupant of land in a drainage district shall 

(1) Form of Complaint Against Person for Injuring Drain. 
State of Illinois, 

County. 

In the name of the People of the State of Illinois : 

A. B. complains of C. D, that he, the said C. D., on the day of , 

18 — , wrongfully and purposely filled up [or, as the ease may be,'] a certain 
drain [or, as the case may be~], belonging to drainage district No. — , of the 
town of— — , in the county aforesaid, constructed for the purpose of drain- 
age [or protection] against overflow. 

A. B. 

Subscribed and sworn to before me, this — — day of , 18 — . 

L. M.,J. P. 



D1V. III.] GENERAL DUTIES OF COMMISSIONERS. . 273 

permit animals to pasture in an enclosed field through which 
runs an open ditch, which ditch is a part of a combined system 
of drainage, said owner or occupant shall repair such damage 
to the ditch as may he made by the animals, and if he neglects 
to do so the commissioners shall make such repairs and require 
the said owner or occupant to pay the amount of the expense of 
such repairs to the treasurer of the district, and in case such 
owner or occupant shall neglect or refuse to so pay such amount 
for ten days after such requirement is made in writing, then 
said commissioners shall proceed to collect the same by a suit 
in law in the name of such district before any court having juris- 
diction. 

46. Liability of commissioners for failure to perform duties- 
Penalty.] § 46. For a failure to perform any of the duties im- 
posed upon them by the provisions of this act, the commissioners 
so failing shall individually, upon complaint made under oath by 
any person who has paid a tax for the construction, maintenance 
or repair of such work, be liable to a fine not exceeding one hun- 
dred dollars ($100), to be recovered in an action in the name of 
the People of the State of Illinois, for the use of the district in- 
terested, before any justice of the peace of the county, and all 
fines, when collected, shall be paid to the treasurer of the district, 
and be liable to the person injured by such neglect of duty, for 
all the damages resulting to the person complaining. 

47. Commissioners and treasurer to make annual report. J 

§ 47. The drainage commissioners shall make annual reports of 
their acts and doings as such commissioners and file the same 
with the clerk of their respective districts on or before the first 
day of November of each year, which report shall contain a state- 
ment of the kind, character and amount of work performed in the 
district, the cost of the same, the amount of orders issued, the 
amount of orders outstanding and unpaid, and such facts as may 
be of general or special interest or benefit to the land owners in 
the district. It shall also be the duty of the treasurer to make 
annual reports and present the same to the commissioners on or 
before the 30th day of October of each year, which report shall 
contain a statement of all moneys received and from what source, 
and of all moneys paid out, on what account paid, and the date, 
number and amount of all orders paid, and such other facts as the 
commissioners may require, which report shall be by the com- 
missioners filed with their report in the clerk's office, and there- 
upon the clerk shall record said reports in the drainage record 
and shall also cause the same to be published in some newspaper 
18 



274 



DRAINS AND DITCHES. 



[DIY. III. 



or newspapers in the county or counties in which the district or 
any part thereof lies. (1) 

47}. District— how dissol red— assessments.] J§ 47 J. When- 
ever two-thirds of the owners of lands, owning not less than two- thirds 
of all the lands within any drainage district organized under this act, 
and lying wholly within the limits of a single township, shall present a 
petition in writing subscribed by them to the drainage commissioners 
of said district, asking that the organization of such district be dis- 
solved, the said commissioners shall, after satisfying themselves that 
such petition is in due form and subscribed by the requisite number of 



(1) Form of Annual Report of Drainage Commissioners. 
State of Illinois, "\ 

County, Y Drainage District No. — 

Town of . J 



The drainage commissioners of district No. — , aforesaid, do make the 

following report of their acts and doings for the year ending on the 

day of , 18—. 

First — The kind and character and amount of work performed in the 
district, is as follows: [here set forth the same.] 

Second — Thecostof the work aforesaid is $ — . 

Third — The amount of orders issued is $ — . 

Fourth — The amount of orders outstanding and unpaid is $— . 

Fifth — [State such facts as may be of general and special interest or ben- 
efit to land owners in the district] 

Witness our hands this day of , 18—. 

Attest: CD..) T) rainaff e 

G-H., Clerk. !;!;;( ComSers. 

Form of Drainage District Treasurer's Annual Report. 
State of Illinois, 

County, Y Drainage District No. 



Town of 



! ' 1 

, >■ Drain; 



To the drainage commissioners of district No. — , of the town aforesaid : 

The following is the annual report of the treasurer of said drainage dis- 
trict, ending on the day of , 18 — , containing a statement of ali 

moneys paid out and on what account paid ; the numberandamouutof all 
orders paid, with such other facts as the commissioners have required. 
1st. Statement of all moneys received and from what source. 




FROM WHAT SOURCE RECEIVED. 



2nd. Statement of all moneys paid out. 








DATE. 


ON WHAT ACCOUNT PAID. 


NO. OF ORDER. 


AMOUNT. 













Witness my hand this ■*-*- day of , 18—. 

« G. H., Drainage District Treasurer, 



DIV. III.] DRAINS AND DITCHES. 275 

land owners in such district and that all indebtedness of such district 
is paid, or funds provided for the payment thereof, and that there is no 
litigation pending against such district, indorse upon such petition an 
order dissolving such district; which petition with such indorsement 
shall forthwith be filed with the town clerk of the township in which 
such district is situated, and by him recorded in the drainage record of 
such township, and thereupon such organization shall be dissolved; but 
such dissolution shall not prevent said commissioners from proceeding 
as before to collect any unpaid assessments, or other obligations owing 
to such district, or expending for the use of said district any funds 
belonging to the same, and shall not impair or prevent the collection of any 
obligation of said district. Ard, provided, that if at any time, not less than 
one year after the dissolution of the organization of any district as herein 
provided, a like number of land owners within such district shall, by peti- 
tion subscribed by them, ask the said commissioners to restore the organi- 
zation of such district as it was before such dissolution, the commis- 
sioners shall, after satisfying themselves that such petition is in due 
form and subscribed by the requisite number of land owners within 
such district, indorse upon such petition an order restoring such 
organization, which shall be recorded and forthwith filed with the town 
clerk, and recorded by him in the drainage record, and thereafter 
the organization of such district shall be in all respects the same as if it 
had not been dissolved: Provided, that nothing herein contained shall 
be construed to permit any person to obstruct, or in anywise prevent 
the use or proper working of any ditch or drain established in any such 
district, or the enforcement of the penalties for injuring drains. 

48. Union Districts.] § 48. When the lands to be organized into a 
drainage district lie in two towns in the same or in different coun- 
ties, both under township organization, such district shall be de- 
signated as Union District No. — , of the towns of 

-, county of .— , State of Illinois. The petition shall be 

filed with the clerk of the town in which the greater part of the 
district lies, and such clerk shall select three commissioners for 
said district from the commissioners of highways of the two towns, 
taking a part from each town, to constitute the drainage commis- 
sioners for the union district, and the clerk shall notify each of 
them of their selection and of the time when they shall meet at 
his office as provided in section twelve (12) of this act, or to meet 
as provided in section sixteen, as the case may be. The clerk 
and commissioners shall have like powers and duties as provided 
for such officers in districts wholly in one town : Provided, hoio- 
ever, if such district lies partly in two counties, the delinquent tax 
shall be made separately for such parts as lie in each, and be re- 
turned to the collector of the proper county.(l) 

(1 The form of petition for union districts may be substantially the same as that 
heretofore given for drainage districts lying wholly in one township. The form of petition 
and other forms for proceedings in such cases heretofore given, may be adopted in forming 
UniQh districts, by varying the same to suit the occasion. • 



276 DRAINS AND DITCHES. DIV. III.] 

49. Special drainage districts.] § 49. When the pro 
posed district lies in three or more towns in the same or different 
counties, or in a county not under township organization, or partly 
in a county under township organization, and partly in a county 
not under township organization, the petition as provided in sec- 
tion 11 shall be presented to the county court of that county in 
which the greater part of the lands of the district shall lie, and be 
accompanied by a bond signed by at least three responsible per- 
sons, conditioned for the payment of all costs to the officers of the 
court or accruing to other parties by virtue of the proceedings in 
case such district be not established, the bond to be approved by 
the clerk or county judge. Such districts when formed shall be 

known as special drainage district in county (or 

counties) and State of Illinois. 

50. Notice of hearing petition.] .§ 50. It shall be the duty of 
the clerk of said court to give notice in at least five public places 
in each township in which said proposed district or any part 
thereof shall lie, also by publishing for three successive weeks a 
like notice in some weekly newspaper in said county or counties, 
which said notice shall contain a copy of the petition, and state 
the day of the term of court when said petition and all parties in- 
terested will be heard. The petition may be heard on any day 
of a probate or common law term of court, not less than twenty 
days from the riling of said petition. The posting and first pub- 
lication of said notices shall be at least twenty days before the 
hearing of said petition, and it shall be the duty of the clerk of 
said court to mail, at least ten days before the time fixed for the 
hearing of said petition, a copy of such notice to each person 
owning lands in said district, whose name, or postoffice address, 
or place of residence is given, and whose name does not appear 
signed to said petition ; and the clerk shall, on or before the time 
fixed for such hearing, file the publisher's certificate of publication 
together with his certificate of the mailing of such notices, giving 
the name of each person to whom such notice was sent, also 
of the posting of such notices in each township, if the same, or 
any part of said notices, are posted by him, and the affidavits of 

Form of Notice by Town Clerk Notifying Commissioner of his Selection 
as Drainage Commissioner. 

To A. B., one of the commissioners of highways of the town of , 

county of , State of Illinois : 

You are herebj' notified that I have selected you to act as one of the 
drainage commissioners of a union district to be organized, comprising 

lands lying in both the town of and town of , in the county 

aforesaid, that a petition was, on the day of , 18—, filed in the 

office of the town clerk of the town of , in the county aforesaid, pray- 
ing for the organization of such union district, and that you are required to 

tvieet at the office of the town clerk, aforesaid, on the day of , 

18 — , at — o'clock, for the purpose of organizing said union district. 

Given under my hand this — « day of ,_ , \§-*-. 



DIY. III.] SPECIAL DRAINAGE DISTRICTS. 277 

all persons posting such notices, or any of them, which certificates 
and affidavits shall be evidence of the facts therein stated. 

51. Hearing petition— Finding— Affidavits— Witnesses,] § 51. 

It shall be the duty of the said court, at the time set for such hear- 
ing, to examine said petition, and if the court shall find upon ex- 
amination, that it is signed and that notice has been given as re- 
quired herein, the court shall so find. The affidavits of three (3\ 
credible signers to such petition, that they are acquainted with 
the locality, and that they verily believe that such petition is signed 
as required, shall be taken as prima facie evidence of such facts, 
against all persons owning lands therein, and as conclusive evi- 
dence against all signers of such petition, of the facts therein stated, 
and that they admit the necessity of organization under the pro- 
visions of this act and for the assessment of benefits and damages 
hereunder. At such meetings, any other owner or owners of land 
within said district shall be permitted to place his, her or their 
names on said petition, if they so desire. Any person owning 
land in said district, whose name is not on said petition, may, at 
said time and place, appear and controvert any material statement 
in said petition. And for the purpose of such hearing, and of 
publishing, posting and mailing of notices, the court shall have 
power to examine witnesses produced before it, and may continue 
the hearing before it from time to time, until all matters are heard 
and determined by the court. 

52. Proceedings on hearing— Appointment of commissioners 
— Report— Order.] § 52. Should the court find against the peti- 
tioners, it shall enter an order to that effect, and the petition shall 
thereupon be dismissed at the cost of the petitioners ; should the 
court find in favor of the petitioners, it shall enter an order to 
that effect, and it shall thereupon be the duty of the court to ap- 
point three drainage commissioners for said district, w T ho shall at 
once proceed to the examination of the lands in said proposed 
district, and personally examine the same ; they shall have power 
to employ a competent civil engineer, if, in their opinion, the servi- 
ces of an engineer be necessary, who shall make such surveys and 
estimates as said commissioners may direct, and shall, if required 
by said commissioners, make and return to them a map, or plat, 
of his surveys, and a full report of all estimates required of him. 
Said commissioners shall make out and file with the clerk of the 
court a full report of their acts and doings as such commissioners, 
together with all maps, pJats, surveys and estimates made or 
caused to be made by them, or the engineer employed by them, 
and may put into said report any recommendation they may deem 
advisable, which report shall be signed by the commissioners, and 
filed as aforesaid, on or before the time fixed by the court for tho 



278 DKAINS AND DITCHES. [DIV. III. 

hearing to complete the organization of said district or such fur- 
ther time as the court may give for the filing of the same. It 
shall be the duty of the court at the time of the appointment of 
said commissioners to fix the time for the hearing of said commis- 
sioners' report as aforesaid, and to complete the organization of 
said district, and no further notice thereof shall be required, and 
said commissioners shall then appear before said court and file 
their report, with all maps, plats, surveys and estimates, if the 
same has not been previously filed in said court. The time fixed 
by the court for such hearing shall not be more than thirty da} T s 
subsequent to the date of the appointment of said commissioners. 
At the time fixed for said hearing, if the commissioners have not 
completed their estimates, or for other cause have not their report 
completed, the court may continue the hearing to such further 
time as will enable the commissioners to complete their work and 
file their report and other papers as herein required. At the time 
fixed by the court -for the hearing on the report of the commission- 
ers, and to complete the organization of said district, or at the 
time to which such hearing was continued, any owner of lands in 
said proposed district may appear in person or by attorney, and 
persons under guardianship by their guardians, and the court 
shall appoint a guardian ad litem, as in other civil proceedings, 
and be heard upon any and all question, matters and things touch- 
ing said report, and the organization of said district, and the 
court shall hear the testimony of all witnesses then introduced ; 
and if it shall appear to the court that the lands included in the 
proposed district will be benefited for agricultural and sanitary 
purposes, the court shall so find and enter an order declaring such 
district organized, unless the court shall find, from the evidence 
introduced on such hearing, that the cost of the proposed work 
will exceed the benefits to be derived therefrom. In which case 
the court shall so find, and enter an order to that effect, and dis- 
miss the petition : Provided, however, if the owners of lands lying 
in said district, who own in the aggregate more than one-half of 
the land lying therein, still desire the formation of said district 
and such desire shall be evidenced by a failure to withdraw their 
signatures from the petition, the court shall enter an order declar- 
ing said district organized, and the clerk shall enter the same of 
record, and the district shall thereupon be deemed fully organized, 

and shall be known and designated as " The special drainage 

district in the county (or counties) of and State of Illinois." 

The commissioners shall be the corporate authorities thereof, and 
shall be a body politic and corporate, with like powers as herein 
conferred upon other drainage commissioners either by this act or 
other laws of this State ; may sue and be sued, plead and be im- 



DIV. III.] SPECIAL DRAINAGE DISTRICTS. 279 

pleaded in their corporate name and capacity, which shall be : 

"The commissioners of the special drainage district in 

county (or counties) of , and State of Illinois." 

53. When special district organized— Notice of Election.] § 

53. As soon as a special drainage district has been organized, 
containing fifteen (15) or more land owners, it shall be the duty of 
the county clerk of the county in which the proceedings are insti- 
tuted, who shall be ex-qfficio clerk of the commissioners of said 
district, to give notice by posting written or printed notices in at 
least five public places in or near said district, that on a day and 
place therein named, and at an hour not later than two (2) o'clock 
P. M., and not less than ten (10) days from the date of notice, an 
election will be held, for the purpose of electing three (3) drain- 
age commissioners for said district. 

54. Election— How conducted— Toter — Oath of commission- 
ers. § 54. In all elections held for the election of drainage com- 
missioners, the drainage commissioners then in office shall be the 
judges of election, and in the absence or refusal of any of them 
to act, the voters present may choose a person or persons to fill 
the vacancy or vacancies. The judges shall choose one of their 
number to act as clerk. Every adult owner of land in the dis- 
trict, whether residing within or without said district, shall be a 
voter, and if a resident of the county in which such district, or 
any part thereof, lies, eligible to the office of drainage commis- 
sioner. The election shall close at four o'clock P. M., unless the 
judges of election shall determine to hold the polls open longer, 
but not later than six (6) o'clock P. M., to accommodate the 
voters. At the close of the election, the judges of election shall 
canvass the votes, and the three persons, or so many as there are 
vacancies to be filled, having the highest number of votes, shall 
be declared elected. In case of a tie, the judges shall determine, 
by lot, who is elected, and they shall also determine, by lot, at 
the first election, their respective terms of office, one of whom 
shall serve for one year, one for tWo years and one for three years, 
or such parts thereof as may expire upon the election of their 
successors, respectively, at the annual meeting, which shall 
be held each year on the third Tuesday of November, when there 
shall be elected one drainage commissioner, to hold his office for 
three years, and until his successor is choosen and qualified. 
In case of a vacanacy in the office, from resignation, death, re- 
moval or refusal to serve, the commissioners in office shall fill 
the vacancy by appointment, until such vacancy shall be filled at 
an annual election. Within five (5) days after every election of 
drainage commissioners, the judges of election shall cause the poll 



280 DRAINS AND DITCHES. [dLV. III. 

book to be delivered to the county clerk aforesaid, with a certifi- 
cate therein showing the names of those elected drainage com- 
missioners, and the terms of each, which poll book shall be filed 
by the clerk, and be evidence of such election; each commis- 
sioner shall, within ten (10) days after his election or appoint- 
ment, take an oath to faithfully discharge the duties of his office 
as sucli commissioner, which oath shall be signed by him and 
filed in the office of said clerk. 

55. District with less than fifteen owners— Appointment of 
Commissioners.] § 55. In all special drainage districts containing 
less than fifteen (15) land owners the court, on the organization 
of the district, shall appoint three drainage commissioners, who 
shall not be interested in the lands or work to be accomplished, 
nor of kin to any of the parties interested therein, one of whom 
shall hold his office for one year, one for two years and one for 
three years, or such parts thereof as may expire upon the ap- 
pointment of his successor; the term of each to be determined by 
the court by lot, at the time of such appointment; and annually 
thereafter, on the first day of the December term of the county 
court, the court shall appoint one commissioner for such district, 
who shall hold his office for three years and until his successor 
is appointed and qualified, and the court shall fill by appoint- 
ment all vacancies in the office of commissioner from any cause. 

56. Commissioners to view lands— Survey and Estimates.] 

§ 56. The commissioners, as soon as they are elected or ap- 
pointed and qualified, shall go upon the land included in said 
drainage district, and determine upon a system of drainage, which 
shall provide main outlets of ample capacity for the waters of 
the district, having in view the future contingencies, as well as 
the present. A competent engineer shall be employed to locate 
and advise upon the character of the work to be done, and report 
in writing, with maps, profiles and estimates of cost, and in a 
general way, the benefits to accrue to the lands in the several 
localities of the district. They shall make, or cause to be made, 
a map or plat of the district and of the work to be done therein, 
which map shall show with reasonable certainty, the location of 
the proposed work, and they shall give a name or number to each 
ditch or drain. The maps and papers showing the final deter- 
mination, as to the system of drainage, shall be filed in the clerk's 
office and be recorded in the drainage record 

57. Procure right of way— When jury assess damages— Venire 
— Notice to owners.] § 57. The commissioners shall then pro- 
ceed to procure the right of way where they can do so by agree- 
ment, as provided in section 18 of this act, which releases shall 



DIV. III.] SPECIAL DRAINAGE DISTRICTS. 281 

be filed arid recorded in the drainage record. Should the com- 
missioners be UDable to procure the right of way by agreement 
with the owner or owners of any land on which the work may be 
located, they shall file a petition or statement, in writing, with 
the clerk of the court in which the proceedings are had, request- 
ing the court to issue a venire for a jury to assess damages for 
right of way, and which petition or statement shall contain a 
general description of the lands or premises over or through 
which the right of way is sought, and the name of the owner or 
owners thereof, if known, the general course and direction of 
the right of way sought, and the amount of laud proposed to be 
occupied by the same. On such petition or statement being filed, 
the court shall fix the time for the hearing not less than fifteen 
days from the date the same is filed, and the clerk shall issue 
a venire for a jury of twelve disinterested land-owners to ap- 
pear at the time fixed by the court, which venire shall be de- 
livered to the s'heriff to execute the same as venires from courts 
of record. It shall also be the duty of the clerk to issue a notice 
or notices to be served upon the owner or owners of the lands 
over which the right of way is thus sought, informing him or 
them of the time and place when said case or cases will be tried, 
which notice may be substantially in the following form: 

"To You are hereby notified that a jury has been called to 

meet before the county judge of the county of State of Illi- 
nois, at the court house in said county, on the day of , A. D. 

18— at — o'clock — M., for the purpose of assessing damages in the matter 

of the special d ainage district in the county (or counties) of 

and State of Illinois, r when and where you can appear and as- 
sert your rights, if yo u desire. 

Which notice shall be signed by the clerk, and attested by his 
seal of office, and may be served by any constable, sheriff or other 
person, by reading the same to the person to whom it is ad- 
dressed, or by delivering a copy thereof to such person, or by 
leaving such copy at his usual place of abode, with some person 
of the family of the age of ten years or upwards, and informing 
such person of the contents thereof. The services of said notices 
shall be made at least five days before said hearing. If the ser- 
vices be made by an officer, the return shall be made as in other 
cases, but if made by any person not an officer, the return shall be 
made under oath, stating when and in what manner served; and 
for all services there shall be allowed the same fees as for services 
of process in civil cases: Provided, that if any of the owner or 
owners are non-residents or unknown, notice of such proceeding 
shall be given by publication, in some newspaper published in 
said county, two successive weeks prior to the time of such hear- 
ing, which notice shall be substantially in the form as above given. 



282 DRAINS AND DITCHES. [dIV. III. 

Minors and their guardians shall be notified the same as other 
owners. 

58. Trial— Challenge— Verdict— Amendments.] § 58. When 
the jury shall appear, the trial shall be conducted as other cases 
before said court; either party may have the same number of 
challenges, and for the same causes, as in other civil cases before 
said court. And if notice shall not have been given as herein 
provided, or for any other good cause, the court may continue the 
case from time to time, until proper notice has been given, or the 
case is ready for trial. The jury shall hear the evidence offered 
as to the value of the land proposed to be taken, and all damages 
consequent upon the construction of the proposed work, and may 
go upon the premises at the request of either party, for the pur- 
pose of viewing them, and they shall return, as their verdict, the 
amount found, if any, in favor of the owner or owners, and against 
said district, and the court shall enter judgment upon the verdict, 
unless, for good cause shown, the court grants a new trial, in 
which case, a time for such new hearing shall be fixed by court, 
and a new jury shall be empaneled; the judgment shall be final 
and conclusive. Vacancies in the panel of jurors, from whatever 
cause, shall be filled the same as other vacancies in other cases, 
but such vacancies shall be filled by land-owners. The owners of 
different tracts of land, whether they be joint or several owners, 
may be joined in the same petition or statement, and the jur}^ 
shall hear and determine all cases for which the venire was issued, 
except when some one or more of the same have been settled, or 
the proceeding in reference thereto are determined. They shall 
return in their verdicts the amount allowed, if any, to each owner 
or joint owner, and in case they are unable to agree as to any 
one or more of the cases submitted to them, the court shall receive 
their verdict in the case or cases in which they do agree, upon 
which judgment shall be rendered as hereinbefore provided, and 
a new jury shall be called to hear and determine the case or cases 
iu which the former jury failed to agree, and the court shall fix the 
time for such hearing by an order entered of record, which shall 
be conducted and tried as new trials in other cases, but may be 
heard at the same, or a subsequent term of the court. The court 
shall allow amendments to the petition, or other papers or records 
in the proceedings, at any time before rendering judgment. 

59. Special assessment of benefits.] § 59. At the earliest 
practicable day the commissioners shall proceed to m.ike a special 
assessment of benefits, as provided in sections 21 and 22 of this 
act, so that each tract benefited shall bear its proportionate share 
of the entire costs and expenses of such work and proceedings. 



PIV. III.]. SPECIAL DRAINAGE DISTRICTS. '283 

60. Maps to be filed— Classification of lands— Notice —Objec- 
tions.] § nO. They shall without delay make out and hie in the 

office of the clerk of said court the table or map, either or both, 
showiug the classification of the lands aud premises in said district, 
the names of the owners thereof if known, and when unknown 
stating "unknown," and they may attach to the same a statement 
of damages allowed, together with any statement or explanation 
they may think proper or necessary to a full understanding there- 
of by all persons. Said commissioners shall fix the time, not less 
than fifteen (15) days from the filing thereof, when they will meet 
to hear any and all objectioDS that may be made to their classifi- 
cation, which meeting shall be at the court house of the county 
in which the district was organized, unless the commissioners 
shall, for the convenience of persons interested, designate some 
other place; and it shall thereupon be the duty of said clerk to is- 
sue notice or notices of the time and place of such meeting, which 
notice or notices may be in substance as follows : 

"To whom it may concern: You are hereby notified that the commis- 
sioners of the special drainage district, in the county (or counties, 

as the case may be) of and State of Illinois, have filed their classifi- 
cation of lands benefited in said district, and that they will, on the 

day of A. D., 18 — at the hour of — o'clock — M., meet at to 

hear any aud all objections that may be made to the same, when and where 
you can appear and be heard if you see fit. 

"Dated at countv of , State of Illinois, this day of 

, 18—." 

Which notice shall be signed by said clerk, and shall be published 
in some newspaper or newspapers printed or published in the coun- 
ty or counties in which the district or any part thereof is located, 
for two successive weeks, the first publication to be at least fifteen 
(15) days prior to the time for such hearing. The commissioners 
or a majority of them shall meet at the time and place fixed for 
the hearing, and shall hear all objections that may be urged, by 
any person interested, to their classification. They may adjourn 
from day to day, or from time to time, as deemed necessary, by 
public announcement, until all objections are heard. All persons 
shall take cognizance of all adjournments without further notice. 
After hearing ail objections that may be offered to their classifi- 
cation the commissioners shall, if satisfied that any injustice has 
been done, correct the same in accordance with the rights and 
justice of the matter, which corrections or changes, if any, may be 
made on the table or map, and the commissioners shall thereupon 
confirm their classification; but if not so satisfied, they shall con- 
firm their classifications as originally made and shall make an or- 
der to chat effect. All orders made by the commissioners, either 
of correction or confirmation, shall be filed in said clerk's office 



284 DRAINS AND DITCHES. [dIV. III. 

within five days from the completion of the hearing, and any per- 
son appearing and urging objections who is not satisfied with the 
decision of the commissioners in confirming the classification of 
his lands, may appeal therefrom, within ten (10) days after the 
order of the commissioners is filed in said court aforesaid, by filing 
with the clerk of said court an appeal bond with good and suffi- 
cient security, to be approved by the clerk or judge thereof, pay- 
able to said drainage district, conditioned for the payment of such 
tax as may be levied upon the land in question and all costs oc- 
casioned by said appeal in case said order of said commissioners 
shall be affirmed. 

61. Appeal how taken— Members of board of appeal.] § 61. 

Where the district lies wholly in one county under township organ- 
ization, the appeal shall be taken to three supervisors, as provided 
in sections 24 and 25 of this act ; where it lies wholly in a county 
not under township organization, the appeal shall be taken to the 
county commissioners ; where it lies in two counties under town- 
ship organization, all of the supervisors shall not be selected from 
the same county ; where it lies in more than two counties under 
township organization, the board of appeal shall consist of one 
supervisor from each county in which any part of the district lies, 
to be selected by the clerk of the commissioners. Where it lies 
wholly in two counties not under township organization, the ap- 
peal board shall consist of three of the county comissioners, 
but not more than two members of such board shall be selected 
from the same county ; where it lies in more than two counties 
not under township organization, one member of the board of ap- 
peal shall be selected from each county in which the district or 
any part thereof lies, and where it lies partly in a county or coun- 
ties under township organization and partly in a county or coun- 
ties not under township organization, at least one member of the 
board of appeal shall be selected by the clerk from each county 
in which any part of the district lies, and shall be a supervisor or 
one of the officers hereinafter mentioned, as the case may be, and 
the clerk shall summons the members constituting the appeal 
board in the same manner ; and the clerk, as also the board of 
appeal, shall have like power, and perform like duties, as near as 
may be, as is provided in section 25 of this act, and the classifica- 
tion, when made and confirmed, shall be conclusive, and shall be 
recorded in the drainage record. 

62. Classification — Confirmation— Certificate— Tax list.] § 62. 

As soon as the classification has been corrected and confirmed by 
the commissioners, or board of appeal, as provided in the preced- 
ing section, it shall be competent for the commissioners to order 



DIV. III. 7 SPECIAL DRAINAGE DISTRICTS. 285 

such amount of money to be raised by special assessment upon 
the lauds of the district which are benefited as may be necessary, 
according to the best judgment of the commissioners, which 
amount shall be certified and returned by the commissioners to 
the clerk of said court, who shall record the same in the drainage 
record. The certificate may be substantially as follows : 

" We hereby certify that we require the sum of dollars to be levied 

as a special assessment or tax for drainage purposes on the lands and prop- 
erty benefited in the special drainage district, in the county [or 

counties] of and State of Illinois. 

" Given under our hands this — day of , 18—." 

Which certificate shall be signed by the commisioners in their 
corporate name. It shall thereupon be the duty of said clerk to 
compute and apportion the amount thus levied among the several 
tracts, in the name of the owners when known, according to the 
acreage of each and its figure of classification on the graduated 
scale, so that each tract may bear its equal burden in proportion 
to benefits. The commissioners shall make out a tax list, which 
shall conform, as near as the facts will admit, to the list provided 
for in section 26 of this act, which list shall be signed by the 
commissioners and filed by the clerk, and any party against whose 
land a tax has thus been levied may appeal therefrom to the 
county court in the same time and manner and upon the same 
grounds as provided in section 27 of this act. 

63. When tax levy inadequate— Additional levy— Installments 
— Interest.] § 63. If at any time the commissioners shall find that 
the amount of such assessment or tax levied will be inadequate to 
complete the proposed work, they shall make such additional 
levy or levies as may be necessary to complete the proposed work, 
which additional levy or levies shall be made on the original 
classification as herein provided for the first assessment or tax 
levy and computed and extended by the clerk in the same manner. 
Upon any levy being made as herein provided, it shall be compe- 
tent for the commissioners to order the tax to be paid in install- 
ments of such amounts and at such times as will be convenient 
for the accomplishment of the proposed work ; otherwise, the 
whole amount of such tax shall be payable immediately upon 
such confirmation, and shall be a lien upon the lands assessed 
until paid ; and such taxes shall draw interest at the rate of eight 
(8) per cent, per annum from the time they shall become payable 
till they are paid, and such interest may be collected and enforced 
as part of the taxes: Provided, however, if, in the judgment of the 
commissioners, the payment of said tax, or any installment or in- 
stallments thereof, for the speedy completion of the proposed work 
would be too heavy a burden upon the owners and persons inter- 



286 DRAINS AND DITCHES. [DIV. III. 

ested to pay in time to be used for said work, the commissioners 
may at any time after the levy has been made postpone the pay- 
ment of such tax, or any one or more installment or installments 
or any part thereof, to such time or times as they may think 
proper and advisable, but not longer than fifteen (15) years from 
the time of the levy thereof. For the construction of the pro- 
posed work or for the continuation and completion of the same 
where it has been commenced, the commissioners may borrow 
money not exceeding in amount ninety per cent of any assessment 
or levy unpaid at the time of borrowing, and may secure the 
payment of the same by notes or bonds of said district, bearing 
interest not to exceed seven (7) per cent, per annum. The inter- 
est may be made payable annually or semi-annually, which 
notes or bonds may be made due and payable at the same 
or different times, but shall not run beyond one year after the last 
assessment or levy, on account of which the money is borrowed, 
falls due, which notes or bonds shall not be held to make the 
commissioners personally liable for the money borrowed, but 
shall constitute a lien upon the assessment or assessments, levy 
or levies on account of which they are issued, for the re-payment of 
the principal and interest thereon. On the correction and confirma- 
tion of said assessment or levy it shall be the duty of the clerk of 
said court to record the same, together with all orders of the 
commissioners or court, in the drainage record, and he shall make 
a certified copy of such tax list, the order of the commissioners 
and court, either or both, correcting and confirming the same, and 
of the order of the commissioners showing how or when the as- 
sessment or tax for benefits is payable, and deliver the same to 
the treasurer of said district, who shall proceed to collect the 
taxes or installments as they come due. 

64. When new notes and bonds may be issued— Suspension of 
tax.] § 64. In any case or cases where the drainage commis- 
sioners of any special drainage district heretofore organized, or 
that may be hereafter organized under the laws of this State, have, 
or may, for the purpose of constructing or completing the work 
to such district, issued notes or bonds on any assessment or as- 
sessments, installment or installments, the payment of which, at 
maturity, would, in the judgment of the commissioners, be an un- 
reasonable burden on the owners of lands assessed, said com- 
missioners shall have the right and power to fund such notes or 
bonds, as the case may be, or any part thereof, and issue new 
notes or bonds to the amount of the unpaid assessment or as- 
sessments, installment or installments, upon which such notes or 
bonds thus outstanding were issued, which new notes or bonds 
may bear interest not to exceed seven (7) per cent, per annum. 



DIV. III.] SPECIAL DRAINAGE DISTRICTS. 287 

Said commissioners may extend the time for the payment of any 
such assessment or assessments, installment or installments, as 
the case may be, by an order signed by them and filed with the 
clerk thereof, to be by him recorded in the drainage record, and a 
certified copy therof to be by said clerk delivered to the treasurer 
of said district, which order shall operate to suspend the time for 
collection until the time fixed in said order of the assessment or 
assessments, installment or installments, named in said order. 
Such new notes or bonds shall run not to exceed one year beyond 
the time thus fixed for the payment of the assessment or assess- 
ments, installment or installments upon which the same is, or are, 
issued. And the old notes or bonds shall be taken up and can- 
celed by said commissioners immediately upon issuing the new 
notes or bonds on the same assessment or installment or any part 
thereof. The payment of interest on all notes or bonds shall be 
provided for, collected and paid, as herein provided for the pay- 
ment of interest in other cases. 

65. Payment of tax may be extended on petition.] § 65. 
Whenever a petition signed by a majority in number of the adult 
owners of lands assessed for benefits in any special drainage dis- 
trict heretofore or hereafter organized under any law of this State, 
and who own, in the aggregate, at least one-third of such land, 
shall be presented to the drainage commissioners of such district, 
representing that any assessment or tax has been made against 
the lands assessed for benefits for the purpose of constructing the 
work therein, and that the same has been confirmed and is un- 
paid in whole or in part, and that it would promote the interest 
of the land owners in such district to extend the time of the pay- 
ment thereof or any part of the same, stating what part, and the 
time or times to which they desire such extension made, but not 
to exceed ten (10) years from the time the assessment or levy was 
confirmed, and asking that such extension be made and that bonds 
of the district be issued, not exceeding in amount the amount of 
the assessment levy or part thereof thus sought to be extended, 
it shall be the duty of the commissioners of such district to enter 
an order extending the time of the payment thereof as asked for 
in said petition, and thereupon it shall be competent for said 
commissioner to issue the bonds of said district to the amount 
thus extended, which bonds shall bear interest not to exceed 
seven (7) per cent, per annum, payable annually or semi-annually, 
and shall be a lien on the assessment levy or part thus extended, 
and shall run not longer than one year beyond the time the same 
becomes due by said extension. The petition and order of the 
commissioners shall be filed and recorded in the drainage record, 
and shall operate to stay the collection of the assessment, levy or 



288 BRAINS AND DITCHES. | DIV. III. 

part tlius extended to the time fixed by said commissioners, and 
shall be sufficient authority for the issuing of such bonds by 
the commissioners of such district. No bonds issued under the 
provisions of this act shall be sold for less than their par value. 

66. Bonds to be recorded in a book— Payment to be entered.] 

§ 66. Before issuing any bonds under the provisions of this act 
the corporate authorities of any district desiring to issue bonds 
shall provide a well bound book, in which a record of all bonds 
issued, with their number, amount, rate of interest, date of issue, 
when due, where payable, amount received for the same and the 
assessment, tax levy, installment or part thereof on account of 
which the bonds are issued shall be made, and said book shall at 
all times be open to the inspection of all parties interested in said 
district, either as taxpayers or bond-holders, and on the payment 
of any bond an entry thereof shall be made in said book in proper 
column for that purpose. 

67. Bond to be registered by state auditor.] § 67. On the 
presentation of any bond, issued under the provisions of this act, 
ot the office of the Auditor of Public Accounts for registration, 
the said Auditor shall cause the same to be registered in his office 
in a book to be kept for that purpose. Such registration shall 
show the date, amount, number, date of maturity, rate of interest, 
time when such interest is payable, and place of payment of the 
principal and interest of such bond; under what act, and by what 
district issued, and the name of the person or persons presenting 
the same for registration; and for such registration the Auditor 
shall be entitled to a fee of twenty-five cents. And the Auditor 
shall, under the seal of his office, certify upon such bond the fact 
of such registration, for which the Auditor shall be entitled to a 
fee of twenty-five cents, such fees to be paid by the person or per- 
sons desiring such registration and certificate; but no bonds is- 
sued under this act shall be entitled to registration in the office 
of the State Auditor until a sworn statement by the corporate 
authorities of the district issuing the bond shall have been filed 
with him, showing the date of the organization of the district, in 
what county organized, the time when the assessment levy or part 
thereof on account of which the bonds are issued will become due, 
and the date, number, amount, rate of interest, and the date of 
maturity of the bonds, together with any other information in re- 
lation thereto which may be demanded by the Auditor of Public 
Accounts. 

CERTIFICATE OF REGISTRATION. 
Section. 

68. Certificate of auditor to county clerk — Clerk make tax list. 

69. State to be custodian of tax — Collect and apply fund. 



DIY. III.] CERTIFICATE OF REGISTRATION. 289 

70. Commissioners rile statement of notes and bonds — Application of 

tax — Levy to meet interest. 

71. Cannot properly be collector and treasurer — Bond. 

72. Assessments — Lien on land — Foreclosure — Additional remedy. 

73. Compensation of officers — Fees how paid. 

74. Construction of bridge over drain. 

68. Certificate of auditor to county clerk— Clerk make tax list. ] 

§ 68. When any bonds issued under the provisions of this act 
shall be so registered, the Auditor of Public Accounts shall annu- 
ally ascertain the amount of interest or interest and principal due 
and accrued, or to accrue for the current year, on all such bonds 
so registered in his office, together with the ordinary cost to the 
State of the collection and disbursement of the same, to be esti- 
mated by the Auditor and State Treasurer, and shall make out 
and transmit to the county clerk of the county in which said dis- 
trict is organized, a certificate setting forth such estimated amount 
of such particular district for such purposes, to be filed in his of- 
fice and recorded in the drainage record, and the amount thereof 
shall thereupon be deemed added to and a part of the amount 
w T hich may be levied or provided by law within the limits of said 
district for the purposes of State revenue; and thereupon it shall 
be the duty of the clerk of said district to compute and apportion 
the amount so certified among the several tracts and property 
assessed for benefits in such district, in the manner as original 
levies are computed under this act, and thereupon he shall make 
out a tax list of the lands and property in the district, and extend 
opposite each tract and property its pro rata share of the amount 
so certified by the Auditor, and deliver the same to the treasurer 
of the district. Where the district lies in more than one county, 
the clerk shall make out a separate tax list of the lands and prop- 
erty assessed for benefits in each county, showing the pro rata 
share levied against the same separately, and deliver the same to 
the county clerk of the respective counties, and the clerk or clerks 
of the respective counties at the time of making up the tax books 
and extending State taxes shall extend on the tax books, for col- 
lection, the pro rata share thus levied, and the same shall be col- 
lected with the State taxes, and all laws of this State relating to 
the State revenue shall apply thereto. 

69. State to be custodian of tax— Collect and apply fund.] 

§ 69. The State shall be deemed the custodian, only, of the 
tax so collected, and shall not be deemed in any manner liable 
on account of such bonds, but the tax and funds so collected shall 
be deemed pledged and appropriated to the payment of the prin- 
cipal and interest of the registered bonds to satisfy which the 
same is hereinbefore provided to be collected as aforesaid, and 
19 



290 DRAINS AND DITCHES. [DIV. II., 

such bonds issued under the authority hereof shall be deemed 
secured and provided for in virtue thereof until fully satisfied. 
The State shall annually collect and apply the said fund to the 
satisfaction of the interest or interest and principal, as the case may 
be, of such registered bonds of any such district, and the interest 
coupons or bonds so paid shall be canceled by the State Treasurer 
and returned to the corporate authorities of the district which is- 
sued them. 

70. Commissioners file statement of notes and bonds— Appli- 
cation of tax— Levy to meet interest.] § 70, It shall be the 
duty of the commissioners of every special drainage district here- 
tofore organized under any law of this State, as also the commis- 
sioners of every such district hereafter organized, to file on or 
before the first day of December of each year, with the county 
clerk of the county in which the district was or may be organiz- 
ed, a statement of the date, number and amount of all notes or 
bonds issued by them as such commissioners, and which remain 
unpaid, the time the same will mature, the rate of interest such 
notes or bonds bear and the time the interest falls due, the amount 
necessary to be lievied on the lands assessed for benefits in order 
to meet the payment of the interest for the ensuing year ; also 
the amount, if any, necessary to be levied to keep the work, or 
any part thereof, in repair for the year next ensuing ; also the 
amount of any deficiency in the payment of interest before accru- 
ed, or in the pa} 7 ment for repairs made ; and the clerk shall com- 
pute the pro rata share which each tract or parcel of land or 
property in said district, assessed for benefits, will have to pay to 
raise said respective amounts, which pro rata share shall be in 
the same proportion as the assessment for the construction of 
said work, and it shall be the duty of the county clerk of the 
county in which the lands are located to extend the same on the col- 
lector's books, the same as State, county, municipal or other taxes 
are extended, in appropriate colomn or columns, and in case the 
lands or property assessed lie in more than one county, the county 
clerk of the county in which the district is organized shall certify 
to the clerk, or clerks, of such county or counties, a description 
of the lands or property assessed in such other county, and the 
amount to be extended against the same for interest, as also for 
repairs, either or both, and on receiving such certificate the clerk 
of the proper county shall extend the same on the proper col- 
lector's book, in proper columns, the same as though the whole 
proceedings and district were in his county. And the amounts 
so extended shall be collected at the same time and in the same 
manner as other taxes on like property, and shall be paid over 
by the party collecting, to the treasurer of the drainage district, 



DIV. in. J CERTIFICATE OF REGISTRATION. 291 

in the same time and manner as taxes collected are required to 
be paid to treasurers of municipal corporations. No levy or as- 
sessment made by the commissioners to meet the payment of in- 
terest on the notes or bonds of the district unpaid shall be used 
for any other purpose, but shall be faithfully applied to the pay- 
ment of such interest as it becomes due: Provided, where the 
whole or any part of the bonds of the district are registered, and 
the Auditor of Public Accounts has levied, as hereinbefore pro- 
vided, an amount sufficient to meet the payment of the interest 
on such registered bonds as it becomes due, then the commis- 
sioners shall make their levy so as to meet the payment of the 
interest on the bonds that are not registered. 

71. Appointment of treasurer and collector— Bond.] § 71. 

The county treasurer of the county in which the proceedings for 
the organization of a special drainage district are commenced 
and district organized, shall be the collector and treasurer of such 
district. He shall give bond to the commissioners in such sum 
as they may fix, not less than double the amount likely to come 
into his hands in any one year, which bond shall be signed by two 
responsible securities, approved by the commissioners and filed 
and recorded in the office of the clerk. Provided, where the 
district lies in two or more counties, the commissioners may ap- 
point the county treasurer of either county as treasurer for the 
district. 

72. Assessments — Lien on land — Foreclosure — Additional 
remedy.] § 72. Any and all assessments made under any law 
of this State heretofore in force for the organization of special 
drainage districts, as also all assessments or levies hereafter made 
under the provisions of this act, shall be taken, held and con- 
sidered to be a lien upon each and every tract of land or prop- 
erty assessed in such district to the extent and amount of the 
proportionate share assessed or levied against the same, but 
such land, or owner thereof, shall not be liable for more than 
such proportionate share and the subsequent levy or levies for 
construction and for the payment of interest or repairs, which 
lien may be discharged on the payment of the amount thereof to 
the treasurer of said district at any times before notes or bonds of 
the district are issued on the assessment. In case the owner or 
owners of any lands lying in said district, and w T hich are assessed, 
fails or neglects to pay any assessment or assessments, install- 
ment or installments, tax levy or levies, when due, and the same 
be not collected on or before the annual sale of lands for non- 
payment of taxes, the commissioners of such drainage district 
may file a petition in the circuit court of the county in which the 



292 DRAINS AND DITCHES. [DIV. III. 

land or property upon which such assessment, installment or levy 
has not been paid, for a foreclosure of such lien ; and the com- 
missioners may proceed in their corporate name and capacity to 
foreclose such lien as provided by law. They may also commence 
and maintain suits at law for the recovery of judgment against 
the person or party whose lands or property is assessed for bene- 
fits for any assessment or tax, or any part thereof, which remains 
due and unpaid on the lands and property of such person or 
party. Any judgment so recovered may be enforced and collected 
as other judgments in the same court. The remedy provided in 
this section for the collection of delinquent special assessments 
or taxes shall not be construed to abridge or in any manner inter- 
fere with the right and power to enforce collection of any delin- 
quent assessment or tax in the manner provided by the revenue 
laws of this State, or other provisions of this act, but the re- 
medy herein provided shall be taken and held as an addi- 
tional means to enforce payment of such delinquent assessment 
or tax. 

73. Compensation of officers— Fees how paid.] § 73. The 

commissioners provided for in this act shall receive two dollars 
and.fifty cents per day for the time actually employed in the dis- 
charge of the duties of their office. They shall make out their 
account under oath, and in all districts except special drainage 
districts, their account shall be audited and allowed by the board 
of auditors of the town in which the district is organized ; and in 
special drainage districts their account shall be presented to and 
allowed by the judge of the court in which the district is organiz- 
ed; and the amount allowed by the board of auditors, or court, as 
the case may be, shall be paid out of the funds of the district for 
which the services were rendered. The clerk of the commissioners 
snail receive the same fees as is allowed for like services in other 
matters connected with his office. If a civil engineer shall be 
employed he shall receive not to exceed five ($5) dollars per day 
for the time actually employed. The treasurer shall receive for 
his services such sum as may be fixed by the commissioners, not 
to exceed two per cent, of moneys collected by him, and not to 
exceed one per cent, on moneys paid by other collectors or 
treasurers, and in no case shall the treasurer receive to exceed 
five hundred dollars for his services in any one year from any 
one district. All fees and allowances shall be paid out of the 
funds of the district for which the services were or may be 
rendered. 

74. Construction of bridge over drain.] § 74. There shall 
be constructed at least one bridge or proper passage way over 



i>iY. HI.] RIVER DISTRICTS — DISTRICTS BY USEE. 293 

each open drain where the same crosses any enclosed field or 
parcel of land, and the cost of construction thereof shall be 
charged as part of the cost of construction of such drain, and 
such bridge, or passage way, shall be maintained by the commis- 
sioners from the district funds: Provided, the commissioners may 
contract with owners of land crossed by such drain to maintain 
such bridges or crossing. 

RIVER DISTRICTS. 
■Section. 

75. Manner of organizing river districts — Powers. 

75. Maimer of organizing river districts — Powers.] § 75. Kiv- 

er districts may be organized in the manner and with like powers 
provided in this act for forming and conducting the business of 
drainage districts, and the commissioners as the corporate author- 
ities shall have power to levy special assessments on the land 
and property benefited, for the purpose of straightening, enlarg- 
ing, embanking or otherwise improving the channels of rivers or 
lesser streams for a more free flow of water and protection from 
overflow, including the clearing of driftwood from the stream and 
removing drift material from the bank when liable to become 
drift, and railroads and public roads which receive benefits may 
be included in the assessment for benefits; or the highway commis- 
sioners of towns interested therein may appropriate from the 
road fund, and the county board may appropriate from the county 
treasury in aid of or wholly to accomplish such work, in con- 
sideration of the benefit to roads, bridges and the public health. 
The town or county authorities named may order surveys and re- 
ports with maps, plans and estimates of cost and benefits to ac- 
crue from the proposed improvement. When such works or any 
of them are a necessary part to the system of dranaige of any 
organized drainage district, such works shall be deemed as be- 
longing to drainage. 

DISTRICTS BY USER. 
Section. 

76. Adjoining owners liable for repairs and improvements. 

76. Adjoining owners liable for repairs and improvements.] 

§ 76. Where two or more parties owning adjoining lands which 
require a system of combined drainage, have by voluntary action 
constructed ditches which form a continuous line, or line and 
branches, the several parties shall be liable for their just propor- 
tion for such repairs and improvements as may be needed there- 
for, the amount to be determined as near as may be on the same 
principle as if these ditches were in an organized district. Whenever 



294 DRAINS AND DITCHES. [DIV. IIT„ 

such repairs and improvements are not made by voluntary agree- 
ment, any one or more owning parts of such ditch shall be com- 
petent to petition for the formation of a drainage district to 
include the lands interested in maintaining these ditches. The 
form and conditions heretofore prescribed shall be observed as 
near as practicable, but the ditches shall be taken as a dedication 
of the right of way, and their construction and joining as the con- 
sent of the several parties to be united in a drainage district. 
These ditches, if open, shall be made tile drains when practi- 
cable. 

DISTRICT BY MUTUAL AGREEMENT. 
Section. 

77. Districts by mutual agreement how formed. 

77. Districts by mutual agreement how formed.] §77. Own- 
ers of land which requires combined drainage may form drainage 
districts, by mutual agreement to include lands of their own only, 
by an instrument of writing duly signed and acknowledged, and 
recorded in the drainage record. This agreement may include 
the location and character of the work to be done; the adjustment 
of damages; the classification, amount of taxes to be levied; how 
the work shall be done, or so much of these or more as may be 
agreed upon, and to this extent shall be as valid as though 
formed in the mode hereinbefore provided, and the powers and 
duties of the commissioners thereafter shall be the same as pre- 
scribed for other districts, and they shall commence acting at ths- 
point reached by the aforesaid agreement : Provided, that this 
agreement may include the selection of three drainage commis- 
sioners from their own number, or from others, and their terms 
of office shall be until the third Tuesday of the following Novem- 
ber, or for this term and for one year in addition, as may be 
agreed at the time of their appointment; and at the annual meet- 
ings thereafter, a majority of the land owners may choose three 
commissioners to serve one year by signing a certificate to that 
effect, or a majority may, in writing, discontinue the voluntary 
district, and thereafter it shall be under such commissioners ;is is 
herein provided for other districts of this class. Such writ- 
ings shall be recorded on the drainage record. The powers and 
duties of the commissioners of a district by mutual agreement 
and the mode and effect of special assessments, shall be the same 
as provided for other districts. 

REPEALING SECTION. 
Section. 

78. Acts repealed — Saving clause. 

78. Acts repealed— Saving clause.] § 78. This act is an 



DIY. III.] REPEALING SECTION. 295 

amendatory revision and consolidation of the three following acts, 
which are hereby repealed : 

1. — 'An act to provide for the organization of drainage dis- 
tricts, and to provide for the construction, maintenance and re- 
pair of drains and ditches by special assessments on the property 
benefited thereby," approved May 29, 1879, in force July 1, 
1879. 

2. — "An act to amend sections three, nine, twelve, thirteen, six- 
teen, thirty-three, thirty-four, thirty-five, fifty-one, fifty-three, fif- 
ty-four, fifty-five and fifty-seven, and to repeal section sixty-nine 
of an act entitled 'An act for the organization of drainage districts 
and to provide for the construction, maintenance and repair of 
drains and ditches by special assessments on the property bene- 
fited thereby,' approved May 29, 1879, in force July 1, 1879, and 
to add three new sections amendatory of last said act, to enable 
lands to be drained and protected from overflow, to be known as 
sections sixtv-nine, seventy and seventv-one," approved May 24, 
1881, in force July 1, 1881. 

3. — "An act to permit owners of land to construct drains for ag- 
ricultural purposes," approved June 23, 1883, in force Julyl, 1883. 

The acts and proceedings done, and rights acquired under either 
of the foregoing acts, if in substantial conformity to law, shall 
not be held to be void from merely technical informality of pro- 
ceedings where no substantial rights of persons or property are ad- 
versely affected ; and the same principles shall apply to this act. 
All drainage districts heretofore organized under any one or more of 
the acts hereby repealed shall be held, and they are hereby declared 
to be legally organized, and the assessments made therein shall 
be held to be legally made. This act, as well as the acts repealed, 
shall be liberally construed to promote drainage, and the reclaim- 
ing of wet and overflowed lands, and in the making and collection 
of assessments and taxes therefor. The officers, under the re- 
pealed act, and proceedings begun, shall be continued under this 
act, and shall have and possess all the rights, powers and privil- 
eges the same and to the same extent as though the whole pro- 
ceedings were commenced and carried on under the provisions of 
this act, and only affected as to the future as herein provided. 
The following acts are hereby also repealed, saving rights as in 
this section provided : "An act to amend sections one, two, three 
and five of an act entitled 'An act to provide for the construction 
and protection of drains, ditches, levees and other works,' ap- 
proved April 24, 1871," approved April 15, 1875, in force July 1, 
1875. "An act to protect, by levees, lands subject to overflow, 



296 DRAINS AND DITCHES. [DIV. III. 

and for draining wet or swamp lands and coal mines," approved 
May 16, 1877, in force July 1, 1877. This act and this repealing 
section shall not affect other independent laws for drainage and 
levees not herein mentioned, but shall be construed as an inde- 
pendent act, not affecting other independent drainage laws except 
as it is a codification and amended successor to the first three acts 
mentioned in the repealing section, and the special provisions of 
this act for their own class of districts shall apply only to such 
districts, but the general provisions applicable to all districts 
shall apply to all districts provided for in this act. 

DKAINS CONSTRUCTED BY LICENSE. 

AN ACT declaring legal drains heretofore or hereafter constructed by mutual license, consent or 
agreement, by adjacent or adjoining owners of land, and to limit the time within which such 
license or agreement heretofore granted may be withdrawn. Approved June 4, 3889. In 
force July 1, 1889. 

79. Drains constructed by license — mutual benefit.] § 1. 

Be it enacted by the People of the State of Illinois, represented in the 
General Assembly, That whenever any ditch or drain, either open or 
covered, has been heretofore or shall be hereafter constructed by mu- 
tual license, consent or agreement of the owner or owners of adjoining 
or adjacent lands, either separately or jointly, so as to make u continu- 
ous line upon, over or across the lands of said several owners, or where 
the owner or owners of adjoining or adjacent lands shall hereafter by 
mutual license, consent or agreement, be permitted to connect a drain 
with another already so constructed, or where the owner or owners of 
the lower lands has heretofore or shall hereafter connect a drain to a 
drain constructed by the owner or owners of the upper lands, then such 
drain shall be held to be a drain for the mutual benefit of all the lands 
so interested therein. 

80. Permission to connect with drain.] § 1. It shall not be 
lawful for either of the parties interested in said drain to authorize 
any other person or persons to connect therewith without the consent 
of all the parties interested in said drain, and all drains connecting 
therewith without such permission shall be unlawful, and any person 
interested may, by bill in chancery, compel the person or persons con 
structing such unlawful drain to fill the same up, and in addition may 
have a right of action for all damages occasioned thereby. 

81. Drains — filling up — consent.] § 3. Whenever drains 
have been or shall be constructed in accordance with this act none of 
the parties interested therein shall, without the consent of all the par- 
ties, fill the same up or in any manner interfere with the same so as to 
obstruct the flow of water therein; and the license, consent or agreement 
of the parties herein mentioned, need not be in writing but shall be as 
valid and binding if in parol as if in writing, and may be inferred from 
the acquiescence of the parties in the construction of such drain. 

82. Act, how construed — parol license] § 4. This act 
shall not be held to apply to any cause now pending in any court of 
this state nor deprive any party of the right he may have under exist 



DIV. III.] COUNTY DITCHES TO DRAIN SWAMP LANDS. 297 

ing laws to revoke any parol license heretofore granted to construct any 
such drain upon, across or over hisdands: Provided, such right be ex- 
ercised and suit commenced to enforce the same within one year from 
the time this act takes effect, but if not thus exercised and suit brought 
within one year he shall be forever barred from thereafter revoking 
«uch license. 

DISTRICTS MAY ISSUE BONDS. 

AN ACT authorizing all drainage districts to issue bonds, and providing for the registration and 
payment thereof. Approved and in force June 15, 1895. 

83. Commissioners may issue bonds.] Beit enacted, etc. I 1 
That it shall be lawful for the commissioners of each and every drainage 
district heretofore or hereafter organized under any law of this state to 
issue the bonds of their respective districts, to an amount not exceeding 
ninety (90) per centum of the aggregate amount of any assessment there- 
tofore levied upon the lands of said district, such bonds to bear interest 
at a rate not exceeding six (6) per centum per annum, payable annually, 
and of such form and tenor as said commissioners shall by resolution pro- 
vide; but no bonds shall be issued under this section until the property 
owners representing a majority in amount of the lands lying in such dis- 
trict shall petition the commissioners for the issue thereof. 

84. When bonds may issue.] \ 2. Before issuing any bonds 
under the provisions of this act the corporate authorities of any district 
desiring to issue bonds shall provide a well bound book in which a record 
of all bonds issued, with their number, amount, rate of interest, date of 
issue, when due, where payable, amount received for the same, and the 
assessment, tax levy, installment, or part thereof, on account of w f hich 
the bonds are issued, shall be made, and said book shall at all times be 
open to the inspection of all parties interested in said district, either as 
taxpayers or bondholders, and on the payment of any bond an entry 
thereof shall be made in said book in proper column for that purpose. 

85. When bonds may be registered.] I 3. On the presenta- 
tion of any bond issued under the provisions of this act at the office of 
the auditor of public accounts for registration, the said auditor shall 
cause the same to be registered in his office in a book to be kept for that 
purpose. Such registration shall show the date, amount, number, date 
of maturity, rate of interest, time when such interest is payable, and 
place of payment of the principal and interest of such bond; under what 
act and by what district issued, and the name of the person or persons 
presenting the same for registration, and for such registration the auditor 
shall be entitled to a fee of twenty-five (25) cents. And the auditor 
shall, under the seal of his office, certify upon such bond the fact of such 
registration, for w r hich the auditor shall be entitled to a fee of twenty - 
five cents, such fees to be paid by the person or persons desiring such 
registration and certificate, but no bonds issued under this act shall be 
entitled to registration in the office of the state auditor until a sworn 



298 DRAINS AND DITCHES. [DIV. III.. 

statement by the corporate authorities of the district issuing the bond 
shall have been filed with him, showing the date of the organization of 
the district, in what county organized, the time when the assessment lev}^ 
or part thereof on account of which the bonds are issued will become due. 
:md the date, number, amount, rate of interest and date of maturity of 
the bonds, together with any other information in relation thereto, which 
may be demanded by the auditor of public accounts. 

86. Duty of auditor — amount which may be levied.] I 4. 

When any bonds issued under the provisions of this act shall be so regis- 
tered, the auditor of public accounts shall annually ascertain the amount 
of interest or interest and principal due and accrued, or to accrue for 
the current year, on all such bonds so registered in his office, together 
with the ordinary cost to the state of the collection and disbursement of 
the same, to be estimated by the auditor and state treasurer, and shall 
make out and transmit to the county clerk of the county in which said 
district is organized, a certificate setting forth such estimated amount of 
such particular district for such purposes, to be filed in his office and 
recorded in the drainage record, and the amount thereof shall thereupon 
be deemed added to and a part of the amount which may be levied and 
provided by law within the limits of said district for the purposes of 
state revenue, and thereupon it shall be the duty of the clerk of said 
district to compute and apportion the amount so certified among the 
several tracts and property assessed for benefits in such district, in the 
manner as original levies are computed under this act, and thereupon he 
shall make out a tax list of the lands and property in the district, and 
extend opposite each tract and property its pro rata share of the amount 
so certified by the auditor, and deliver the same to the treasurer of the 
district. Where the district lies in more than one county, the clerk shall 
make out a separate tax list of the lands and property assessed for bene- 
fits in each county showing the pro rata share levied against the same 
separately, and deliver the same to the county clerk of the respective coun- 
ties, and the clerk or clerks of the respective counties at the time of 
making up the tax books and extending the state taxes shall extend on 
the tax books for collection the pro rata share thus levied, and the same, 
shall be collected with the state taxes and all laws of this state relating, 
to the state revenue shall apply thereto. 

87. State shall be custodian of the tax.] I 5. The state 
shall be deemed the custodian only of the tax so collected, and shall not 
be deemed in any manner liable on account of such bonds, but the tax 
and funds so collected shall be deemed pledged and appropriated to the 
payment of the principal and interest of the registered bonds, to satisfy 
which the same as hereinbefore provided to be collected as aforesaid, and 
such bonds issued under the authority hereof shall be deemed secured 
and provided for in virtue thereof until fully satisfied. The state shall 
iinnually collect and apply the said fund to the satisfaction of the inte- 



DIV. III.] COUNTY DITCHES TO DRAIN SWAMP LANDS. 299. 

rest or interest and principal, as the case may be, ot such registered 
bonds of an}' such district, and the interest coupons or bonds so paid 
shall be canceled b} T the state treasurer and returned to the corporate 
authorities of the district which issued them. 



ABATEMENT OF ASSESSMENTS. 

AN ACT in relation to the abatement of assessments for benefits in levee and drainage districts. 
Approved June 15, 1895. In force July 1, 1895. 

88. Ahatng amount of assessments.] Be it enacted, etc. § 1. 
That the county courts of this state in any county or counties wherein 
any such levee or drainage district exists, shall have power upon petition 
of the commissioners of such district or districts, or of any land owner 
of lands located therein, to inquire and ascertain whether any assess- 
ment or assessments for benefits in such district exceed the total amount 
of all indebtedness of such district based upon such assessment or 
assessments respectively. And in the event that such court shall find 
from the evidence that such assessment or assessments is or are in excess 
of such total amount of outstanding indebtedness based thereon, such 
court shall have power to abate the amount of such assessment or assess- 
ments so in excess of all such indebtedness. 

Provided, however, that no such abatement of assessments shall be 
made whereby any contract of such drainage district for the payment of 
indebtedness based upon such assessments shall be impaired. 

89. What petition shall state — notice — who may appear.] 

\ 2. Such petition for abatement of assessment shall state the total 
amount of balance of assessment wherefrom abatement is sought, and 
the total amount of balance of indebtedness based on such assessment 
and the balance or excess of assessment above such balance of indebted- 
ness, and the truth of the facts averred in the petition shall be verified 
by affidavit. Such petition shall be filed at least forty da}-s prior to the 
first day of the term of court at which the same is sought to be tried 
and heard, and no hearing, order or decree shall be had or taken thereon 
until publication of notice of the tendency of such petition addressed to 
whom it may concern, stating the object of such petition and the subject 
matter thereof, as herein required to be set forth, shall have been pub- 
lished in some public newspaper published in the county wherein the 
matter of such petition is pending, at least once in each week and for 
four successive weeks, the first publication thereof being not less than 
forty days prior to the first day of the term of court at which such hear- 
ing shall take place. Any creditor of said district the owner of any 
evidence of indebtedness based upon such assessment so sought to be 
abated, or any person interested shall have the right to appear at the 
hearing of said petition, and show cause, if any, why the abatement or 
any part thereof petitioned for should not be made. 



300 DRAINS AND DITCHES, [DIV. III. 

COUNTY DRAINAGE OF MARSH LANDS. 

AN ACT to maintain and improve county ditches heretofore constructed to drain certain swamp 
and overflowed lands. Approved June 23, 1883. In force July 1, 1883. 

90. Public ditches or drains.] Be it enacted, etc. I 1. That 
the ditches or drains heretofore made by any county, or by any county 
contracting with an incorporated company, to drain the swamp and over- 
flowed lands donated to such county by the state, are hereby declared 
public ditches or drains, and may be preserved and improved by the 
several county boards in the counties where these ditches lie, in the 
manner as provided in this act. 

91. Power of county board — commissioners.] § 2. The 
county board may designate what ditch or ditches shall be repaired or 
improved to secure the purposes for which it was constructed ; and when 
any one or more have been so designated, the board shall appoint three 
suitable persons to be styled district commissioners, neither of whom 
shall have any personal interest in the proposed work, and within ten 
days after being notified of their appointment, they shall meet at the 
office of the county clerk, file their acceptance and take the oath required 
of officers by the constitution. 

92. Commissioners — separate districts.] § 3. They shall 
proceed, soon as practicable, to form drainage districts, to include in 
each, all such tracts, divisions and subdivisions of land, being near or 
more remote from the line of the drain, but which, for a thorough sys- 
tem of drainage, will be benefited in the way of securing an outlet by 
the preservation and improvement of the ditch or ditches which drain its 
surplus waters. Separate districts shall be formed where the ditches 
discharge independently; also on branches of the same water system, 
where the maintenance and improvement of its ditches are clearly inde- 
pendent of others ; and separate districts may be formed on the upper 
level of a water system where its outlet will secure drainage independent 
of the ditches on the lower level. 

93. Classification of districts for taxation.] § 4. When the 
commissioners have laid out a district, they shall give it a name, subject 
to alteration by the county board, and proceed to classify the lands 
within the districts on a graduated scale according to the supposed bene- 
fits it will receive. The tracts adjudged to receive most and about equal 
benefits shall each be marked one hundred (100) on the scale of bene- 
fits ; and such as will be less benefited shall be marked some number 
less than one hundred, denoting its per cent, of benefits. This classifica- 
tion, when made and established, shall remain as a basis for taxation, 
so that each tract shall bear its just burdens in raising funds for main- 
taining and improving the ditches within such district. 

94. Classification — notice — review,,] I 5. When this classifi- 
cation is completed, they shall publish for three weeks in some one or 
more newspapers in their county, a notice showing what tracts of land 
are included in the district, how classified on the scale of benefits, with 



DIV. III.] COUNTY DITCHES TO DRAIN SWAMP LANDS. 301 

owner's name if known; and they shall also post up at least ten notices 
containing the same items, in or contiguous to the district, and these pub- 
lications and notices shall state when and where the commissioners will 
meet to review their doings, and hear such objections as may be made by 
any aggrieved party. 

95. Meeting to hear objections.] I 6. At this meeting, which 
ma} r be adjourned if necessary, any person, his agent or attorney, owning 
lands within the district, may object and show cause: (1) That the dis- 
trict should not be formed on the ground of impracticability of drainage 
or that the cost will be greater than the benefits. (2) To the boundaries 
of the district as including or excluding certain tracts of land improperly. 
(3) To the classification of lands on the scale of benefits, specifying such 
as are too high or too low. 

96. Finding of commissioners.] I 7. If the commissioners 
find either count in the first paragraph established, they shall annul the 
district and so report to the county board, and all further proceedings 
shall end: Provided, the county board may, in their discretion, appoint 
other commissioners at some subsequent time. But if they find for the 
district, they shall consider the objections under the heads of bounda- 
ries and classifications of lands; and they shall make such changes as 
shall seem to them just. Th3y shall publicly announce their decision, and 
file their statement of the same within three days with the county clerk. 

97. Appeal from decisions.] % 8. Any one person or persons 
owning lands within the district as established may, within five days 
after the commissioners have reported to the county clerk, appeal from 
the decision of the commissioners, on any point objected to at the time 
of review, by giving a bond, with security, to be approved by the county 
clerk, conditioned to pay all costs of the proceedings under the appeal, if 
the decision of the commissioners be in all things sustained. If more 
than one person appeal, they shall all join in the same appeal, though 
their objections may be on different matters. 

98. Manner of appeal.] § 9. The appeal shall be addressed to 
the county clerk, stating the cause of the appeal. In counties under the 
township organization, the county clerk shall summon three supervisors, 
who shall not be owners of land in the proposed district, nor otherwise 
interested, to try the appeal. In counties not under township organiza- 
tion, the appeal board shall consist of the county judge, assessor and 
county clerk, who shall be duly notified by the county clerk ; and he shall 
give at least three days notice to one or more of the appellants when and 
where the appeal will be heard. If an}^ of the last named board are excluded 
by reason of interest, it shall pass successively to the sheriff and coroner. 

99. Power of board of appeal.] \ 10. The board of appeal 
shall have the same power and jurisdiction as the commissioners 
on the questions involved in the appeal. They may annul the district, 
change the boundaries, or alter the numbers placed on the scale 
of benefits, if these, or any of them were the subjects named 



302 DRAINS AND DITCHES. [DIV. III. 

in the appeal. They shall hear proofs and allegations, may 
themselves go upon the ground and investigate, and when they 
shall have concluded, they shall file their decision with the clerk 
of the county. If it be to annul the district, no further proceed- 
ings shall be had, except it shall be again instituted by the county 
board. If the district be not annulled, and the proceedings of 
the commissioners be reversed or approved, wholly or in part, 
they shall so report to the county clerk, and their decision on the 
matters submitted, shall be final and conclusive. 

100. Map— Record— Report.] § 11. After the district shall 
have been fully established, by reason of no appeal from the de- 
cision of the commissioners, or by the action of the board of ap- 
peal, the commissioner shall cause to be made a map of the dis- 
trict, showing each tract of land included, with the figures show- 
ing the classification on the scale of benefits, and the owner's 
name, if known, marked on each tract. A copy of this map shall 
be filed in the office of the county clerk, and in the office of each 
town clerk, whose town is wholly or in part included in the drain- 
age district They shall also cause to be recorded in the recor- 
der's office an instrument of writing, setting forth all the material 
facts of the case, including a description of the tracts of land com- 
posing the district, the number on the scale of benefits, and the 
owners' names so far as known, belonging to each tract. The 
commissioners shall also make a full and detailed report of the 
case to the county board, who shall spread the same upon their 
records. 

101. Drainage— Commissioner — Appointment.] § 12. When- 
ever one or more drainage districts have been established, as 
herein provided, the county board shall appoint some suitable 
person drainage commissioner, who shall have such charge, per- 
form such duties and execute such lawful orders, as the board 
may from time to time devolve upon him; and he shall hold his 
office two years, unless sooner removed by the board, in which 
case the board shall appoint his successor. 

102. Corporate authority of district— Rate of tax.] § 13. The 

county board shall be the corporate authority of the several 
drainage districts of their respective counties organized under 
this act, and may, in its discretion, levy special assessments to 
procure funds for the use of such districts, but no levy for any 
one year shall exceed a sum which will produce a tax of more 
than one dollar on each acre of the several tracts marked one 
hundred on the scale of benefits, and such other proportional 
amount less than one dollar an acre on the several tracts as grad- 
uated on that scale. 

103. Tax— How computed— Separate fund.] § 14. The tax 



DIV. m.] DRAINS FOR AGRICULTURAL PURPOSES. 303 

shall be computed for each tract according to its acreage and 
classification on the scale of benefits, and the tax shall be set 
down in a separate column on the tax books against each tract 
composing a part of the district to be taxed, and the money shall 
be collected by the collector of taxes in like manner of other 
taxes, and, if not paid, it shall be treated as other delinquent taxes, 
and remain a lieu upon the land until paid. The money when 
collected, shall be paid into the county treasury and kept as a 
separate fund for the use of its proper district, to be drawn upon 
by order of the county boatd. 

104. Contract with other counties.] § 15. The county board, 
by itself or through such agencies as it may institute, may con- 
tract with other counties, or with the corporate authorities of 
other drainage districts, organized under this act, or under other 
laws of this State, to connect ditches, or act otherwise, in concert 
or jointly, where a combined system of drainage shall be found 
to be necessary or expedient. 

105. Purpose of act.] § 16. The purpose of this act, is to 
secure ample and permanent main channels of drainage for their 
respective districts, so that all owners of land within the district 
shall have the facilities of thorough drainage of their lands, and 
therefore each shall have free connection with the public ditches 
for that purpose, and, by consent of parties, drain over the land 
of others to reach the outlet; and where more perfect drainage is 
desired than is provided for by this act, owners of land in any 
part of a district may organize under other drainage laws as freely 
and completely as though not included in a county district, and 
such district or sub-district, shall have free use of the public or 
county ditches for outlets to their drains. 

DISSOLUTION OF DKAINAGE DISTKICTS. 

AN ACT to provide for the dissolution of drainage districts. Approved June 4, 1889. To force 
July 1, 1889. 

' 106. District — how dissolved.] § 1. Be it enacted by the 
People of the State of Illinois, represented in the General Assembly, 
That any drainage district may be dissolved by the order of the county 
court of the county wherein the same is organized upon a hearing had 
upon a verified petition praying such dissolution, signed by not less 
than four fifths (4-5) of the adult land owners of such district, who own 
in the aggregate not less than three-fourths (J) in area of the assessed 
land thereof, when it shall be determined by the court that not less 
than six weeks' notice of such hearing has been given by posting no- 
tices in six of the most public places of the district sought to be dis- 
solved, and by the insertion in a weekly newspaper of such county for 
six successive weeks next prior to such hearing, and that no indebted- 
ness of such district exists and the costs of dissolution have been 



SOI 



DISSOLUTION OF DISTRICT. DIV. III.] 



advanced: Provided, the waterways and other improvements of dis- 
solved districts shall be and remain for the common use of and im- 
provements by the land owners of such dissolved district. (1) 
107. Sale of property of dissolved district.] § 2. If snch 
dissolved district owns any property, either real or personal, it shall be 
sold by an order of the county court directed to the Master in Chancery 
of said county, whose duty it shall be to advertise and sell such prop- 
erty in manner otherwise provided by law; and the proceeds of such 
sale after the costs are paid, shall be turned over to the county treas- 
urer, who shall use the same to pay any indebtedness of such dissolved 
district. 

PROTECTION OF DRAINS, DITCHES, STREAMS, ETC. 

AN ACT in relation to the construction, reparation and protection of drains, ditches: 
and levees across the land of others for agricultural, sanitary and mining pur- 
poses, and to provide for the organization of drainage districts," approved and in 
force May 29, 1879. Approved June 7, 1897. In force July 1, 1897. 

§1. TO REQUIRE ALL PERSONS OWNING LAND TO CLEAN STREAMS.] Be it enacted, etc. 

That all persons owning land in this state shall clean annually any and all brush. 
trees, logs and other impediments to the flow of water in the bed of any stream, how- 
ever small, and extending from the top of one bank to the top of opposite bank of any 
such stream, as far as any such stream shall run or border the land of any owner 
and when any stream shall run between the lands of two or more owners, each party 
shall clean his part of such stream: Provided, that streams or runs [not] less than 15 
feet wide, and the rivers of this state, shall not be included herein, and this act shall 
not interfere with fencing, flood-gates, bridges, culverts, etc., etc. 

§2. Penalty for failure to comply with above section.] Incase of failure to 
comply with the above section of this act, the tax assessor shall, when he assesses the 
land of any such owner, inquire whether or not section one of this act has been com- 
plied with by any such land owner, and if such land owner has failed to have com- 
plied with the requirements of this act by the first day of May of each year, the 
assessor shall note the fact on the assessment book opposite the land of such owner, 
and the county clerk is hereby required to extend ten dollars drainage tax against 
each forty acre tract or fraction thereof, as a penalty for such failure, and five dollars 
on each such tract shall be added each successive year, and extended by such clerk 
on the tax books until this act shall be complied with by each land owner or owners, 
said money to be collected as other taxes, and paid into the school fund of the town 
wherein the land is, and used in the school district where the land is situated. 

In case of failure to comply with the above section of this act, the person or persons 
so failing, shall be liable for all damages occasioned thereby to the person or persons, 
corporation or municipality injured thereby, to be recovered in any of the courts of 
this state having competent jurisdiction thereof. 

(1) Petition for Dissolution of Drainage District, 

State of Illinois, County, ss : 

To the honorable the judge of the county court of said county: 
The undersigned, being four-fifths of the adult land owners in drainage dis- 
trict No. , and owning three-fourths of in area of all the assessed lands 

therein, respectfully petition for the dissolution of said drainage district. 
Dated this day of a. d. 18— 

The petition should be accompanied with proof of (he posting and publication of notice as re* 
faired by law. 



DI7. IV.] FENCES. 305 



DIVISION IV. 

FENCES. 

AJI ACT to revise the law In relation to fences. [Approved March 21, 1874. In tens 
July 1, 1874. Rev. Stat. Ch. 54.] 

SECTION. 

1. Fence viewers. 

2. What a lawful fence. 
8. Division fence. 

4. When lands inclosed — Contribution. 

5. Value of fence, etc., ascertained. 

6. Neglect to repair or rebuild. 

7. Disputes settled. 

8. Choice of viewers. 

9. Viewing fence — Disagreement. 

10. Decision. 

11. Neglect — Damages. 

12. Making or repairing fence destroyed. 

13. Refusing to make or repair. 

14. Removal of division fence — Notice. 

15. Removal without notice. 

16. Mistake in locating fence. 

17. When removal may not be made. 

18. Viewers may examine witnesses, etc 

19. Fees— Expenses. 

20. Trespass — Damages. 

21. Damages, damage feasant. 

1. Fence viewers.] § 1. That in townships nnder township 
organization the town assessor and commissioners of highwavs 
shall be ex officio fence viewers in their respective towns. In 
connties not nnder township organization the county board, at 
their annual meeting in December, shall appoint three fence 
viewers in each precinct, who shall hold their office for one vear, 
and until their successors are appointed.(l) [L. 1861, p. 221, § 
4; L. 1857, p. 160, § 14 

2. What lawful fence.] § 2. Fences four and one-half feet 
high, and in good repair, consisting of rails, timber, boards, stone, 
hedges, barb wire or " whatever the fence viewers of the town 
where the same shall lie shall consider equivalent thereto, shall 
be deemed legal and sufficient fences. Provided, that in counties 
under township organization the electors at any annual town 
meeting may determine what shall constitute a legal fence in the 
town, and in counties not under township organization the power 
to regulate the height of fences shall be vested in the county 
board.(2) [E. S. 1845, p. 280, § 14. 

(1) The duties of fence viewers are chiefly Judicial, hence they should not be of kin 
to either party. Sanborn y. Fellows, 22 N. Hamp. R., (2 Fost.), 473. 

(2) A fence Is nothing more than a line or obstacle to restrain or exclude animals, or 
to serve as notice of possession, and may be composed of anything and in such manner a& «• 
answer such purpose. Allen y. Tobias, 77 IIL R., 16S. 

20 



306 FENCES. [dIV. IV 



3. Division fence.] § 3. When two or more persons shall have 
lands adjoining, each of them shall make and maintain a just proportion 
©f the division fence between them, and if said fence shall be a hedge 
fence, then the owner or owners of such hedge fence shall, during the 
year after such hedge has attained the age of seven years, cut back or 
trim such hedge fence to a height not to exceed four feet, and shall at 
least once in every two years thereafter, cut back or trim such hedge 
fence to the height of live feet: Provided, that the provisions of this 
section shall not apply to any hedge fence protecting either an orchard 
or building, or wind break not to exceed thirty rods. If the owner or 
owners of such hedge fence shall fail or refuse to comply with the pro- 
visions of this act, on or before the fifteenth (15) day of June, in the 
year that said hedge should be cut or trimmed, anv one of the owners of 
such division fence having complied with the provisions of this act may 
give the owner or owners or their agents of any such uncut or un- 
trimmed hedge, ten days' notice, in writing, to cut or trim such hedge. 
And should the owner or owners, or their agents, so notified fail or 
refuse to comply with said act it shall be lawful for the person giving 
said notice to cut or trim or cause to be cut or trimmed in accordance 
with law, and the cost and damage of cutting or trimming such hedge 
may be recovered of the owner or ownrs of such hedge before a justice 
of the peace or any court of competent jurisdiction. [Act of ^889. 

(1) A division fence between adjoining land owners may be established by 

agreement of the parties, as well as under the statute. D'Arcy v. Miller, 86 111. R., 102. Th« 
agreement should be reduced to writing, each party taking a copy, although a parol agreement 
lor partition is held to be valid. Guyer v. Stratton, 29 Conn. K., 421. 

Form of Agreement to Divide and Maintain a Division Fence between Ad- 
joining Owners. 

This agreement, made this day of , A. D. one thousand eight 

Hundred and , between A. B., of the town of , in the county 

©f , and the State of Illinois, of the one part, and C. D., of the same 

town, of the other part, witnesseth, that whereas the said A. B. has here- 
tofore erected a fence on the division line between his lands and the lands 
©f the said C. D., which said fence commences at [describe the location of 
the fence']. And whereas, after the erection of said fence, the said C. D. 

inclosed a field on the east side of said division line, so that rods of 

aaid fence, commencing at the, etc. [describe the location of said portion 
of the fence], has become and now is a partition fence between the fields 
©f the said A. B. and C. D.; and whereas, the said C. D. has paid to the 

said A. B. dollars, being in full for one-half of the value of said 

rods of fence, it is therefore agreed between the parties hereto that the 

rods of fence on the north part of said rods shall be well and suffi- 
ciently maintained and kept in repair by the said A. B., and the remain- 
der of said rods shall be kept in like repair by the said C. D. 

In witness whereof, the said parties have hereunto set their hands and 
seals the day and year first above written. 

The liability imposed by statute upon the owners of adjoining land to contribute 
their just share towards the costs, etc. of a division fence is fixed at the time the fence becomes 
a division lence. The grantee of one who has built a division fence does not succeed to the 
jight of his grantor to enforce contribution from the adjoing owner. This right, being a mere 
shose in action, is not the subject of assignment. Hale v. Andrews, 75 111. R., 252. 

It is a legal Incident attached per se to all lands enclosed and holden in sever 
alty, running with them perpetually and unaffected by ulterior divisions and subdivisions, that 
*&ch of the adjoining propro&w^ ftkaH make and maintain one-half of the division fences. So, 
where a division fence has ueen apportioned between adjoining owners, and the land on either 



DIV. IV.] EXAMINATION OF FENCES. 307 



4. When lands inclosed— Contribution.] § 4. When any per- 
son shall have chosen to let his land lie open, if he shall afterward 
inclose the same, or if any owner of land adjoining upon the in- 
cisure of another shall inclose the same upon the inclosure of 
another, he shall refund to the owner of the adjoining lands a just 

SS 6 .^™! 8 toe f ?after s ^ bdi ^ d ?d, by conveyance, between two or more grantees, they may call 

^^ga^ssst g&rs ir h fence « according * tMs ch »S ed smews 

An occupant of land who Is bound to maintain a fence between hl» own and an 

t$SS?$££?£!k r y P Iace ,H, al f,? f S- '«?<*. ° f reasonable <Ume"kms?on toe todS to ? ™. 

n£, ? /„'^l upon eai * s "?? of the mathematical line, and toat such fence if a fence Kntem. 

toon^to^e^afoc i a n SSSTJS& M? #£"£!» '" maiDWD " «^ * 

closed, their proceeding are without jurisdiction and void. Bechiel vMsonS S? 19 wS ft 

£|££JK2£ ?4S S B. .KfiSKKjS aTSjo^nwr^Sl/iuS 

mon law o5tota? a S 1 tt ffno?.w^ l h n ii; g r? er ' whose ^ eicape n !n?"hS r l^ 9 Q ? n %HoS 
mon taw on this point is not altered by the statutes. Thayer v. Arnold, 4 Mete R., (Mass.) 589 

wiiTF"""- »"•*»' AJSKttsws* assvisaa. w 

Sf tir^e b P eiS £ to ^i^d^n.w^h^ 68 ""V th ^ right to ""* necessary occupa^?fS 
rtl required to enable him to comply. Carpenter v. Hal&ey, 60 Barb R^ 



308 FENCES. [DIV. IV. 

proportion of the value at that time of any division fence that 
shall have been made by such adjoining owner, if the same shall 
be a ditch or hedge, and if the same be not a ditch or hedge, he 
shall immediately build his proportion of such division fence, or 
refund to said adjoining owner a just proportion of the value at 
that time of such fence.(l) [L. 1857, p. 159, § 2. 

5. Yalue of fence, etc., ascertained.] § 5. The value of such 
fence, and the proportion thereof to be paid by such person, and 
the proportion of the division fence to be made and maintained 
by him, in case of his inclosing his land, shall be determined by 
two fence viewers of the town, in counties under township organ- 
ization, and in other counties by any two fence viewers of the 
precinct.(2) [L. 1857, p. 159, § 3. 

(1) Wooded land which has been used as a sugar hush and wood lot, and partly 
cleared but not occupied, is not within the statute exempting from fencing, and land allowed to 
"lie open to a public common." Perkins v. Perkins, 44 Barb. R., 159. 

The right of an owner who has erected a partition fence to recover the value 
of one-half thereof, against the owner of adjoining land, is complete by the commencement of 
proceedings to have the value of such half ascertained by fence viewers, and cannot be de- 
feated by a sale of the land, and a notice by the purchaser that he does not intend to occupy, 
or improve, or inclose it, subsequent to the application to the fence viewers, and notice of such 
application by them to the original owner, though previously to any further proceedings by 
them. *The liability of the owner or occupant of land, which has lain uninclosed, on inclosing 
or depasturing the same, to pay for the one-half of a partition fence, attaches immediately upon 
such Inclosing or depasturing. Field v. Proprietors, etc., 1 Cush. R. (Mass.), 11. 

Where two persons own adjoining closes of improved land, and a partition 
fence has never been divided, or the portion to be kept up by each in any manner ascertrined, 
neither can impose upon the other, or claim for himself the protection contemplated by the 
statute regulating fences. Coxe v. Robbins, 9 N. J. L (4 Hals.), 384. 

The laws regulating partition fences, party walls, and other like police regulations, 
are an ancient branch of legislation. Their object is to regulate the management and enjoy- 
ment of property by the owners at their common expense, and they are a proper and constitu- 
tional exercise of legislative power. Coster v. Tide Water Co., 18 N J. Eq., 54. 

(2) Pence viewers are made the sole Judges in controversies concerning division 
fences, and of the sufficiency of such fences, as well as of all other fences, and are to decide by 
direct examination of the premises. Fox v. Beebe, 24 Conn. R., 271. 

It is held that any person occupying land, and interested In the making and 
maintaining a division fence, be his estate or interest in the premises what it may, is entitled to 
avail himself of the provisions of the statute in reference to division fences ; the remedy is not 
limited to the owner of the fee. Bronk ▼. Becker, 17 Wend. R., 320. 

An appraisal hy fence viewers does not prevent a party from proving by other 
evidence the expense of building the adjoining owner's portion of a division fence, in a suit 
brought to recover the cost of such portion. Perkins t. Perkins, 44 Barb. R., 134. 

Form of Notice to Adjoining Owner to Choose Fence Viewers as to Value 

of Division Fence. 
To A. B. : 

You are hereby notified that you having enclosed your lands adjoining 

inclosed lands belonging to me, in the town of , county of , 

State of Illinois, your land being described as follows : [describe the lands 
briefly]* and my said lands being described as follows: [describe lands 
briefly], so that the fence, all of which belongs to me, on the line of my 
said land, is the division fence between that and your land ; that I desire 
to have the value and proportion thereof which you should pay deter- 
mined by the fence viewers of the town aforesaid, and that if you shall 
neglect for eight days after receiving this notice to make choice of a fence 
viewer to act in said matter, I shall thereafter proceed and select both, 
and submit to them the matter aforesaid. 

Dated this day of , 18—. C. IX 



DIV. IV.] EXAMINATION OF FENCES. 309 

6. Neglect to repair and rebuild.] § 6. If any person neglect 
to repair or rebuild a division fence, or portion thereof, which he 
ought to maintain, any two fence viewers of the town or precinct, 
as the case may be, shall, on complaint by the party aggrieved, 
after giving due notice to each party, examine such fence, and if 
they deem the same to be insufficient, they shall so notify the 
delinquent party, and direct him to repair or rebuild the same 
within such time as they may deem reasonable.(l) 

Form of Determination of Fence Viewers as to Value and Proportion of 

Division Fence. 



County, 



Town of- 



}' 



Whereas, it appears to the undersigned, fence viewers of said town of 

, that L. M. has lately inclosed his lands in said town, described as 

follows : [describe lands briefly], adjoining the enclosed lands of O. P., so 
that the fence belonging to said O. P. has become the division fence be- 
tween the enclosed lands of said parties,* and said parties having duly 
selected the undersigned fence viewers of said town [or as the case may 
be] to determine the value of such fence and the proportion thereof to be 
paid by said L. M., and- the proportion of the same to be maintained by 
him, due notice being given to each party, and having heard the allega- 
tions of the parties, said fence viewers do determine that the va'lue of 

said fence is dollars, that the proportion thereof to be paid by said L. 

M. to said O. P. is dollars, and that the proportion of said division 

fence to be maintained by said L. M., is as follows: [describing the por- 
tion of fence allotted, by distances from point to point, or other convenient 
description]. 

Witness our hands, this day of , 18 — . 

A. B., \ Fence 
C. D., j Viewers. 

In case both fence viewers are selected by one party, after notice and neglect of the other 
party to make choice, the foregoing form may be changed by omitting the words, " and said 
parties," at the *, and inserting the following ; 

" Said L. M. having neglected to make choice of fence viewers, after 
due notice, and said O. P. having," etc. 

(1) The complaint to the fence viewers by a party aggrieved is not required to be in 
writing. It will be proper, however, that the notice to the parties by the fence viewers, and 
gubsequent proceedings, should be reduced to writing. The proceedings of fence viewers should 
be treated, as to matters of form, with at least the indulgence extended to proceedings before 
Justices of the peace ; and where it appeared that a party was notified verbally, and by the oppo- 
site party, and was present at the meeting of the fence viewers, and made no objection at that 
time, the notice was held sufficient. Talbot v. Blaeklege, 22 Iowa R., 57. 

Form of Notice to Adjoining Owner who Neglects to Repair or Rebuild 

Division Fence. 
To A. B. : 

You are hereby notified that you having neglected to repair [or rebuild] 
your proportion of the division fence between our adjoining lands in the 
town of , county of , and State of Illinois, your said lands be- 
ing described as follows: [describe the land briefly], and my said lands 
being described as follows: [describe land briefly], that I desire to submit 
the matter of the sufficiency of said fence and your duty in the premises 
to fence viewers, of the town aforesaid, for their decision ; and that if you 
shall neglect for eight days after receiving this notice to make choice of a 
fence viewer to act in said matter, I shall thereafter proceed and select 



310 FENCES. [diy. it. 

7. Disputes settled.] § 7. If disputes arise between the own- 
ers of adjoining lands, concerning the proportion of fence to be 
made or maintained by either of them, such disputes shall be 
settled by any two of the fence viewers of the town or precinct, 
as the case may be, and in such cases it shall be the duty of the 

both fence viewers for that purpose, and submit to them the matter afore- 
said. 
Dated this day of , 18—. C. D. 

Form of Notice to Parties by Two Fence Viewers for Examination oj 

Fence. 
To C. D. : 

You are hereby notified that complaint having been made by A. B. to 

the undersigned, fence viewers of the town of , that you have 

neglected to [state what is complained o/], and that we shall on the 

day of , 18—, at the hour of o'clock, — M., proceed and examine 

such fence with a view to such action in the premises as the case shall 
require. 

Dated this day of , 18—. L. M., ) Fence 

R. S., > Viewers. 

Form of Direction by Fence Viewers to Repair or Rebuild Fence. 



County, \ 

Town of / ss - 



Complaint having been made by A. B. to the undersigned, fence view- 
ers of said town of , that [state the substance of complaint, showing 

the location of the fence] , said fence viewers having been duly selected by 
said A. B.* and C. D. to act in said matter [or as the case may be], we did, 
having given due notice thereof to each party in the premises, proceed j 

on the day of , 18 — , and examine such fence, and having heard 

the allegations of the parties did and do deem the same to be insufficient, 
and do direct that [state the direction or order made]. 

Witness our hands, this day of , 18 — . 

L. M., } Fence 
R. S., [Viewers. 

In case both fence viewers are selected by one party, after notice and default by the other, 
change the foregoing form by inserting at the *, in place of the words, " and C. D., the follow- 
ing: 

"Said C. D. having neglected to make choice of fence viewers, after 
due notice, and said A. B. having selected the undersigned fence viewers.'* 

The fence viewers, in their proceeding on the complaint of a person aggrieved* 
would undoubtedly be confined to the subject of the complaint. If that related to the repair- 
ing of a fence, they probably would not have authority to assign to the adjoining occupants 
their respective share of the fence, and direct the rebuilding within a specified time. Sears v. 
Charlemount, 6 Allen R. (Mass.), 437. 

The application or complaint to the fence viewers may include the whole subject in contro- 
versy ; but before a party can be affected by the acts or decisions of the fence viewers, he must 
have notice. Fairbanks v. Chiids, 44 N. Hamp. R„ 458. 

A good and sufficient fence must be not merely one which will turn ordinary stock, but 
one that will turn stock even though, to some extent, unruly. C. & A. R. R. Co. v. Uttey, 69 111. 
R.,411. 

The common law role, requiring the owner of stock to keep It upon his own land 
has been recognized, in some cases, in this State, as governing inside or division fences. Eeaden 
r. Rust, 89 111. R., 186. 

"Where, in a field occupied hy several persons, there is an inner fence, one of the 
occupants of the field cannot remove such inner fence at pleasure, though he may be the owner 
thereof, without rendering himself liable to his co-occupant for any damages resulting there- 
from. Nor is it any defense to an action of trespass, growing out of the removal of the inner 
fence, to show that the complaining party was bound to keep the outer fence in repair, or thai 
he migM have repaired the same at small expense. Buckmaster v. Cool, 12 IU. R.. 74. 



DIV. IV.] EXAMINATION OF FENCES. 311 

two fence viewers to distinctly mark and define the proportion 
of the fence to be made or maintained by each.(l) [L. ]857, p. 
159, § 4. 

8. Choice of viewers — Notice.] § 8. When any of the abov® 
mentioned matters shall be submitted to fence viewers, each party 

In an action to recover for the trespasses committed in the field of the plaintiff foj 
the hogs of the defendant, it appeared the hogs entered the plaintiff's field through a division 
fence from an adjoining field owned by the defendant, such division fence being owned entirely 
by the plaintiff. Held, the fence was not a partition fence under the statute, hence, the question 
of its sufficiency was not involved. Under such circumstances the rule of the common law 
prevails, that each man is bound to take care of and keep his animals on his own land. McBricte 
▼. Lund, 55 111. R., 411. 

If one of the owners of a division fence shall neglect to keep his portion in re- 
repair, the other cannot, without notice to him, select both fence viewers and charge him with 
all the costs of the view. The party not notified will not be bound by the action of the viewers, 
and therefore will not be liable for any expense on their account. Thompson v, Bulson, 78 I1L 
R„ 277. 

Held, in New Hampshire, that it is the occupier and not the owner of a close who is bound t® 
keep the fences in repair. Tewksbury v. Buklin, 7 N. Hamp. R,. 518. 

Where fence viewers find a divisional fence to be insufficient, their notice to the persons bound 
to repair it need not specify the particulars in which it is defective. Fox v. Beebe, 44 Conn. R., 271. 

(1) "Where a dispute arises as to the proportion of a fence to be maintained by eacfe 
party, it may be settled by fence vieAvers, even where there has been an agreement on the sub- 
ject. Berger v. Kortwright, 4 Johns. R., 414. 

The decision of the fence viewers as to the proportion of fence of each party is not necessary 
where there is no dispute between them. Willouohbv v. Cotton, 9 Johns. R.. 136. 

The fence viewers have authority to determine what portion of a division fenc© 
shall be paid for or repaired by an adjoining occupant, but over the payment of the same so as- 
certained they have no control. In a suit for monev awarded by fence vieAvers to be due from 
one adjoining proprietor to another for a partition fence voluntarily built by the latter, evidence 
that he was paid for the same by the person who subsequently conveyed the adjoining premises 
to the former is admissible. Butler v. Barlow, 2 Wis. R., 10. 

It is held that an appraisal hy fence viewers does not prevent a party from 

f)roving by other evidence the expense of building the adjoining owner's portion of a division 
ence in a suit brought to recover the cost of such portion. Perkins v. Perkins, 44 Barb. R., 134. 

The statute in relation to partition fences authorizes fence viewers to assign distinct por- 
tions of the dividing line to adjoining owners. Any direction beyond this by the viewers is 
Bimply void, but does not invalidate their acts so far as they had authority. Longly v. Hilton, M 
Maine R., 332. 

An assignment by fence viewers of only a part of a continuous line of partition 
fence is not for that reason invalid, neither party at the time requesting that the whole line b® 
divided. After such assignment duly made, the obligation of the parties are fixed to maintain 
the fence accordingly, and cannot be changed, without consent by a subsequent view and divis- 
ion by the fence viewers of the whole continuous line of partition fence. Alger v. Pool, 11 Cush„ 
R. (Mass.), 450. 

Where the plaintiff in an action to recover the sum awarded to him, by the 
fence viewers, alleged that he and the defendant were owners of enclosed lands, separated by a 
stone wall, which was originally built Dy W., under whom the plaintiff holds, and which in 
consequence of a division of the land in July, 1826, it became the duty of the defendant to unite 
with the plaintiff in dividing, and to pay the plaintiff such sums as should be awarded by the 
fenoe viewers ; it was held, that the fence viewers, on the plaintiff's application had power and 
right to divide and apportion the fence anew. Wright v. Wright, 21 Conn. R., 329. 

The division of enclosed lands by sale or otherwise, prima fade subjects them to a new divi- 
•ion of the partition fence among the new adjoining owners. Wright v. WrigfU, 21 Conn. R., 329. 

The existence of a dispute about a partition fence is sufficient to enable the fenc© 
Tlewere to interpose. Barger v. Kortright, 4 Johns. R., 414. 

"Where a dispute arises between parties as to the value of division fences, and 
the proportion to be paid to him who has erected the whole fence, the fence viewers of the town 
have jurisdiction of the matter. The decision of the fence viewers in such a case, should be 
reduced to writing and filed in the office of the town clerk, and an action will be to recover the 
sum in the certificate stated to be due. Hewitt v. Watkins, 11 Barb. R., 409. 

The notice served, under which fence viewers are selected, is Jurisdictional, andi 
they cannot, without the express consent of the parties interested, act upon any other or differ- 
ent question than that expressed in the notice, and without notice they cannot be selected to 
act at all. When fence viewers were selected under notice that they were to be selected to 
settle a dispute concerning the proportion of a division fence to be made by each of the parties, 
they will have no power to assess the amount to be paid by one of the parties to the other for & 
portion of a fence already built. Hale v. Andrews, 75 111. R., 252. 



312 FENCES. [DIV. 17. 

shall choose one ; and if either neglect, after eight days' notice in 
writing, to make such choice, the other party may select both. 
And for all purposes of notice under this act, it shall be sufficient 
to notify the tenant or person in possession of said adjoining 
premises, when the owner thereof is not a resident of the town in 
which such fences are situated. (1) [L. 1857, p. 159, § 5. 

9. Viewing fence— Disagreement.] § 9. The two fence view- 
ers so chosen shall examine the premises, and hear the allegations 
of the parties. In case of their disagreement, they shall select 

(1) Whilst the words "any of the above mentioned matters," occurring in section 8 of this act, 
would seem to have reference only to matters contained in the preceding section, the Supreme 
Court have recently decided that the words have reference to all matters in each preceding sec- 
tion of the act wherever the selection of fence viewers is contemplated, and that the require- 
ments of section 8 govern in all such cases. Thompson v. Bulson, 78 111. R., 277. 

This is at best a forced construction of the provisions of the act. It would seem that if the leg- 
islature intended such construction they would have employed some language to that effect in 
sections five and six. 

Form of Notice to Adjoining Owner to Choose Fence Viewer to Settle 

Dispute. 
To R. R.: 

Sir:— A dispute having arisen between you and myself, being the own- 
ers of adjoining lands in the town of , in the county of — — — , and 

State of Illinois, concerning the proportion of division fence to be made [or 
maintained] by each of us upon the line of our said lands, your land in 
question being known as [describe the land with reasonable certainty'], and 
mine as [describe the land]. I have chosen J. W., one of the fence viewers 
of said town, and do hereby give notice to you to proceed and choose another 
of the fence viewers of said town, to the end that said dispute between us 
maybe settled and decided by said fence viewers, and that if you shall 
neglect to make such choice for eight days after receiving this notice, I 
shall make such choice myself, and proceed to have said matter in dispute 
adjusted by the fence viewers thus chosen by me, the same as if one had 
been chosen by you. 

Yours, etc., J. E. 

Dated, etc. 
Form of Submission of Dispute Between Adjoining Owners to Two Fence 

Viewers. 

To P. S. and J. G., two of the fence viewers of the town of , in the 

county of , and State of Illinois: 

A dispute having arisen between the undersigned, A. W. and B. L., 
owners of adjoining lands in said town of , concerning the propor- 
tion of division fence to be made [or maintained] by each on the line of 
their respective lands, the land of said A. W. being described as follows: 
[describe the land with reasonable certainty,'] and that of the said B. L., 
being described as follows: [describe the land]. The said A. W. has 
therefore chosen you the said P. T., and the said B. L. has chosen you the 

eaid J. G., as two fence viewers of said town of , to the end that you 

may proceed to settle and decide said matter of dispute ; and the undersign- 
ed do hereby submit said matter of dispute to you the said fence viewers, 
and request that you will proceed according to law, and settle and decide 
the same as shall seem to you just and right. 

Dated this day of , 18—. A. W. 

B. L. 

If one fence viewer should net by agreement of the parties, it Is apprehended that hi* 
fcction and determination would be good and binding. Kellogg v. Brown, 82 Conn. R., 10s, 



DIV. IV.] EXAMINATION OF FENCES. 313 

another fence viewer to act with them ; and the decision of any 
two of them shall be final upon the parties to such dispute, and 
upon all parties holding under them. [L. 1857, p. 159, § 6. 

10. Decision.] § 10. The decision of the fence viewers shall 
be reduced to writing; shall contain a description of the fence, 
and of the proportion to be maintained by each, and their decision 
upon any point in dispute between the parties, submitted to them 
as aforesaid ; and shall forthwith be filed in the office of the town 
clerk, or in the office of the county clerk in counties which shall 
not have adopted township organization (1.) [L. 1857, p. 159, § 7. 

(1) Form of Decision of Fence Viewers in Relation to Dispute between Ad- 
joining Owners. 
County, 



Town of 

Whereas, we, the undersigned, two of the fence viewers of said town of 

, having been chosen by R. V. and J. J., owners of adjoining 

lands in said town, for the purpose of settling and deciding a dispute 
which has arisen between thern concerning the proportion of division 
fence to be made [or maintained] by each of them, on the line between 
their said lands, the lands in question being described as follows: [describe 

the land of each], and the said R. V. and J. J. having, on the day of 

, 18 — . submitted the said matter in dispute to us, for our settlement 

and decision, we did, on the day of , 18 — , proceed and ex- 
amine the premises, and hear the allegations of the parties. The said 
fence we find to be a rail fence, commonly called a Virginia or worm fence, 
running north and south, in length one hundred and sixty rods, and being 
the division fence between the lands above described, that the same was 
originally erected jointly by the parties, and divided equally between them, 
the said J. J. taking the south half thereof for his portion, by agreement, 
and that the said J. J. now neglects and refuses to keep his portion of the 
same in proper repair [or as the case may be]. We do, therefore, adjudge 
and determine that [conclude with the determination of the fence viewers 
according to the fact]. 

Given under our hands, this day of , A. D. 18 — . 

L. P.,1 Fence 
J. R., j Viewers. 

Form of Decision of Fence Viewers, where two cannot agree, and another 

is selected. 



^&> 



A dispute having arisen between A. B. and C. D., two owners of adjoin- 
ing lands in said town of , concerning the proportion of division 

fence to be made [or maintained] by each of them on the line of their said 
lands, the land of the said A. B. being described as follows: [describe the 
land or field in question], and the lands of said C. D. being described as 

follows: [describe the land or field], the said parties did, on the day 

of , 18 — , submit the said matter in dispute to the undersigned W. S. 

and N. W., two of the fence viewers of said town of , for their settle- 
ment and decision, the said parties having chosen said fence viewers for 

that purpose, the said fence viewers did, therefore, on the day of 

, 18- — , proceed and examine the premises and hear the allegations 

and proofs of the parties, and the said two fence viewers, being unable to 
Hgree in the premises, did select N. P., another fence viewer of said town, 



314 FENCES. [DIY. IY, 

11. Neglect— Damages.] § 11. If any person who is liable to 
contribute to the erection or reparation of a division fence shall 
neglect or refuse to make or repair his proportion of such fence, 
the party injured, after giving sixty days' notice, in writing, that a 
new fence should be erected, or ten days' notice in writing, that the 
reparation of such fence is necessary, may make or repair the same 
at the expense of the party so neglecting or refusing, to be recov- 
ered from him, with costs of suit ; and the party so neglecting or 
refusing, after notice in writing, shall be liable to the party injured 
for all damages which shall thereby accrue, to be determined by 
any two fence viewers selected as above provided ; and the fence 
viewers shall reduce their appraisement of damages to writing, and 
sign the same.(l) [L. 1857, p. 160, § 8. 

to act with them in making such settlement and decision ; and we, the 
undersigned, being now fully advised in the premises, do adjudge and de- 
termine that [conclude according to the determination of the viewers]. 

Given under our hands, this day of , 18—. 

W. S. 



:;} 



N W V Fence 

N.' P.' * Viewers - 



If a part of a division fence be assigned to one to keep in repair, it is his property, so faj 
at least that the removal of it, for lawful purposes cannot make him a trespasser. Burrell r. 
BurreU, 11 Mass. R., 294. 

A decision of fence viewers requiring the occupant of nninclosed land to erect 
maintain, or pay for part of a division fence, is void. The occupants of such lands are under no 
obligation to erect fences. Bechtel y. Neilson, 19 Wis. R., 49. 

The proceedings of fence viewers, as to matters of form, should be treated with 
at least the indulgence extended to proceedings before justices of the peace. Talbot v. Blackleg e, 
22 Iowa R , 572. 

Fence viewers have no authority to determine the rights of different claim- 
ants of land, or. to establish disputed boundaries, and neither party is precluded, by their 
decision, from contesting the question of ownership in himself, or in the adverse party, or the 
location of their boundaries. Shaw v. OilfUlan, 22 vt. R., 565. 

A certificate of fence viewers adjudging -where parties should set their partition 
fence, is not evidence of the title of those parties. Corlis ▼. LUtle, 13 N. J. L. (1 Green.), 229. 

(1) Form of Notice to Adjoining Owner to Contribute to Erection or Repar- 
ation of Division Fence. 
To 8. R.: 

Sir : You are hereby notified to repair [or as the case may be] uaafc por- 
tion of the division fence on the line between your land and mine, situate 

in the town of , and county of , according to the decision of J. 

L. and J. H., two of the fence viewers of said town, made on the day 

of , 18—, and filed in the office of the town clerk of said town, on 

the day of , 18—, and that if you shall neglect to repair the 

same, agreeably to said decision, for the period of ten days from the date 
of receiving this notice, I shall proceed myself and repair said fence at 
your expense. 

Dated this day of , A. D. 18—. L. N. 

Form of Appraisal of Damages by Fence Viewers, Accruing to Adjoining 
Owner, by Reason of Neglect to Make or Repair Fences. 

County, \ cc 

Town of 



Whereas, we, the undersigned, two of the fence viewers of the said town 
f ; having been chosen by P. B. and J. S., owners of adjoining landg 



DIV. IV.] LIABILITY FOR DAMAGES. 315 

1 2. Making and repairing fences destroyed.] § 12. Whenever a 
division fence shall be injured or destroyed by fire, floods or other 
casualty, the person bound to make and repair such fence, or any 
part thereof, shall make or repair the same, or his just proportion 
thereof, within ten days after he shall be thereto required by any 
person interested therein — such requisition to be in writing, and 
signed by the party making the same.(l) [L. 1857, p. 160, § 11. 

13. Refdsing to make or repair.] § 13. If such person shall 
neglect or refuse to make or repair his proportion of such fence for 
the period of ten days after such request, the party injured may make 
or repair the same at the expense of the party so refusing or neglect- 
ing, to be recovered with costs of suit. (2) [L. 1857, p. 160, § 12. 

14. Removal of division fence.] § 14. If any person is dis- 
posed to remove a division fence, or part thereof, owned by him, 



in said town, for the purpose of appraising the damages claimed by the 
said P. B., and accruing to him in consequence of the neglect of the said 
J. S. to repair [or as the case may be] his proportion of a division fence 
mentioned and described in a certain decision made by [state by whom 
made, or if the fence has been divided by agreement, state that fact, and 

vary the form, accordingly'], on the day of , 18 — , and reduced to 

writing, and filed in the office of the town clerk of said town of . 

We did, on the day of , 18 — , proceed to examine the premises; 

and after due inquiry and examination by us made, and having heard the 
allegations of the parties, we do determine that the said P. B. has sustained 
damages to his land, crops, fruit trees and shrubbery [or as the case may 
be] in consequence of the neglect of the said J. S. to repair [or as the case 
may be] his proportion of the division fence, as aforesaid ; which damages 

we have ascertained, and do appraise at dollars. 

Witness our hands, this day of , A. D., 18—. 

P. S., \ Fence 
R.B.,/ Viewers. 

Parol proof of the fact that written notice to repair was given, is sufficient for th« 
purpose of showing notice. Wttloughby v. Carleton, 9 Johns. R., 136. 

(1 )Form of Notice to Make or Repair Fence Injured by Fire, Flood, eto. 

To A. B. : 

Sir: — I do hereby require you to repair that portion of the division 

fence on the line between our adjoining lands in the town of , and 

county of , which you are bound to repair, to-wit: [describe the fence 

in question]. Should you neglect to repair said fence for the period of 
ten days from the date of receiving this notice, I shall proceed myself to 
repair the same at your expense. 

Dated this day of , A. D. 18—. N. T. 

Appraisal by fence viewers of damages in case of neglect or refusal to make or 
maintain division fence would embrace injuries such as treading down grass, corn, wheat and 
other crops, the extent of which may be ascertained on view, but would not extend to damages 
for death of cattle from over eating grain, in the fields of a party who has neglected to keep 
his proportion of the division fence in repair. Clark v. Brovm, 18 Wend. R., 213. The appraisal 
If properly made would probably be conclusive. Harriman v. Fifield, 36 Vt. R., 341. 

(2) The law does not require such request, under the above section, to be in writing. 



316 FENCES. DIV. IV.] 

and suffer his lands to lie open, after having first given the adjoin- 
ing owner one year's notice, in writing, of his intention so to do, 
he may, at any time thereafter, remove the same, unless such ad- 
joining owner shall previously cause the value of said fence to be 
ascertained by fence viewers, selected as hereinbefore provided, 
and pay or tender the same to such person. (1.) [L. 1857, p.160, § 9. 

15. Removal without notice.] § 15. If any such fence shall 
be removed without such notice, the party removing the same 
shall pay to the party injured all such damages as he may thereby 
sustain, to be recovered with costs of suit. (2) [L. 1857, p. 160, 
§10. 

16. Mistake in locating fence.] §16. When a person has made 
a fence on an inclosure which afterwards on making division lines 
is found to be on the land of another, and the same has occurred 
through mistake, such first person may enter on the land of the 
other and remove his fence and material within six months after 
such line has been run.(3) [B. S. 1845, p. 281, § 19. 

17. When removal may not be made. §17. But such fence 
shall not be removed if it was made of material taken from the 
land on which it is built, until the party pays or tenders to the 



(1) Form of Notice by Adjoining Owner of his Intention to Remove his 

Share of Partition Fence. 
To H. H. : 

Sir:— You will take notice that I intend to remove my portion of the 
division fence on the line of our adjoing lands [describe the location oj 
the fence with reasonable certainty}, that my said lands may hereafter lie 
open, and that I shall remove the same after the expiration of one year 
from the date of your receiving this notice. 

Dated this day of , A. D. 18—. J. G. 

If an existing fence is a partition fence by agreement, by acquiescense or under the 
statute, it cannot be removed by either owner or occupier until the other has sufficient notice. 
McCormick v. Tate, 20 HI. R., 334. 

Where a party removes a partition fence -wrongfully, and his stock enters upon 

another's premises, he will be liable. Stoner et at. v. Shugart, Jr., 45 111. R., 77. 

One who sows his crop after the fence has been taken down, which protects 
one side of his laud, cannot recover damages of the wrongdoer, for injury to his crop, by the 
entry of cattle on it. He was bound to use reasonable prudence in planting his crop. Hassa v. 
Junger, 16 Wis. R., 598. 

Proprietors of adjoining lands are not under legal obligation to perpetually 
maintain division fences with each other. It is a matter of convenience between the panies, 
which either may at his pleasure terminate by giving the statutory notice. Hoag v.&witzer et aL 
61 111. R.. 294. 

(2) Where a party removes a division fence without having previously given the re- 
quired notice, the party injured thereby is not limited to a suit for the recovery of actual dam- 
ages sustained in consequence of such removal, but may make the fence anew and recover the 
expense thereof by action. 

If actual damages are sustained, as the loss of a crop for instance, caused by the re- 
moval of the fence, an action for the recovery of such damages, as well as a suit to recover the 
expense of making the fence may be sustained. Richardson v. McDougaU, 11 Wend. R., 46. 

(3) The law giving the right to remove fences made by mistake upon the lands 
of other persons, applies only to natural persons; it has no relation to a case where a fence is 
erected by mistake upon the lands of the United States or of this State. Blair v. Worley, 1 Scam. 
R.. 179. 



DIV. IV.] REMOVAL OF FENCES. 317 

owner of the land the value of such material, to be ascertained 
by the fence viewers ; nor shall a fence be removed at a time 
when the removal will throw open or expose the crops of the 
other party, but it shall be removed within a reasonable time 
after the crops are secured, although the six months above speci- 
fied have passed. 

18. Tiewers may examine witnesses, etc.] § 18. Fence view- 
ers may examine witnesses on any and all questions submit- 
ted to them, and either of such fence viewers shall have power 
to issue subpoenas for, and administer oaths to such witnesses. (1) 
[L. 1857, p. 160, § 13. 

19. Fees.] § 19. Fence viewers shall be entitled to one dollar 
and fifty cents per day, each, for the time necessarily spent as 
above provided , to be paid in the first instance by the party re- 
quiring the services ; and all expenses of the view shall be borne 
equally between the parties, except in case of view to appraise 
damages for neglect or refusal to make or maintain a just pro- 

Eortion of a division fence, in which case the costs of view shall 
e paid by the party in default, and may be recovered as part of 
the damages assessed.(2) [L. 1857, p. 160, § 15. 

20. Trespass— Damages.] § 20. If any horse, mule or ass, or 
any neat cattle, hogs or sheep, or other domestic animals, shall 
break into any person's inclosure, the fence being good and suf- 
ficient, the owner of such animal or animals shall be liable, in an 
action of trespass, to make good all damages to the owner or 
occupier of the inclosure. This section shall not be construed 
to require such fence, in order to maintain an action for injuries 
done by animals running at large contrary to law. (3) [E. S. 
1845, p. 281, § 15. 

(1) Form of Subpoena for Witness by Fence Viewers. 
State of Illinois, 



County, c '' 



The People of the State of Illinois to [name of witness] : 
You are hereby commanded to appear before L. M. and R. 8., fence 

viewers of the town of , in said county, at [state the place], on the 

day of , 18—, at o'clock, — M., to testify and the truth to 

speak in a matter pending before said fence viewers, between A. B. and 
C. D., concerning [state briefly the matter in controversy]. 
In witness whereof the said fence viewers have hereunto set their hands 

this day of , 18—. L. M., \ Fence 

R. 8. J Viewers. 

(2) In an action of assumpsit by a land owner against his neighbor, to recover the 
latter's portion of money paid to fence viewers, held, that, to support the action, it must appear 
that the division had been made on the representation of one or both the parties ; that one of 
them had refused to pay the part awarded him to pay, and that the division had been made on 
the true line between them. Gallup v. Mulvah, 24 N. Hamp. R. (4 Fost.), 204. 

(S) In order to maintain an action for the trespass of stock upon one's inclo- 
sure, whereby damage is sustained, the owner of the inclosure must have maintained a good 



318 FENCES. [DIV. IV. 

21. Damages feasant — Rescue.] § 21. If any such animal or 
animals shall break into an inclosure surrounded by a fence of 
the height and sufficiency prescribed by this act, or shall be 
wrongfully upon the premises of another, the owner or occupier 
of such inclosure or premises may take into possession such an- 
imal or animals trespassing, and keep the same until damages, 
with reasonable charges for keeping and feeding, and all costs of 
suit be paid, to be recovered in any court of competent jurisdic- 
tion ; and any person who shall take or rescue any such animal 
so taken up from the possession of the taker-up without his con- 
sent, shall be liable to a fine of not less than three nor more than 
five dollars for each of such animals so rescued, to be recovered 
on complaint before any justice of the peace of the county where 
such offense shall be committed, for the use of the school fund 
of the proper county : Provided, that within twenty- four hours 
after taking such animal into his possession, he shall give notice 
to the owner thereof, if known, or if unknown, he shall post no- 
tices at some public place near the premises.(l) 

and sufficient fence about it. Headen v. Rust, 89 111. R„ 186. This decision is understood to ap- 
ply only in cases where animals are allowed to run at large. 

In an action for trespass, committed by defendant's cattle upon the plaintiff's 
land, the defence was, that the cattle entered from the adjoining field of the defendant, through 
the plaintiff's insufficient fence. Held, that the plaintiff might show that such cattle were un- 
july, which would repel the defence. Barnum v. VanDusen, 16 Conn. R., 200. 

"Where It appeared that the injury complained of in an action of trespass for 
damages done to the plaintiff's land by defendant's cattle, resulted from the want of a sufficient 
fence between the adjoining lands of the plaintiff and defendant, that it was the duty of each 
<Df the owners of these lands to make and maintain one-half of the divisional fence, and that 
the plaintiff had never made his part, or taken any measures toward it. Held, that the plaintiff 
was not entitled to a recovery. Studwell v. Kick, 14 Conn. R. 292. 

Where A»s sheep escaped from his land into B's land, through the insufficiency 
cf a fence which B. was bound to repair, and thence passed into another adjoining lot of B. 
which was surrounded by a sufficient fence, and committed damage, Held, that B. could not 
maintain trespass therefor against A. Page v. Olcott, 13 N. Samp. R., 399. 

Where stock break through defendant's poition of a division fence which is 
defective, plaintiff can recover although his portion of the fence may also be out of repair. 
Ozburn v. Adams, 70 111. R., 291. 

What is a good and sufficient fence is a question for the Jury to determine from 
the evidence. 

An action for the trespass of cattle may be maintained if the fence is good and sufficient, 
whatever may be its height. Scott v. Wirshing, 64 I1L R., 102. 

No one Is obliged to fence against animals fere naturae, (wild by nature,) but the 
twner of such animals must keep them at his peril, and he is liable for damages done by them 
©n another's land whether fenced or not Cane/ox v. Crenshaw, 24 Mo. R., 556. 

(1) The notice to the owner of animals trespassing on the land of another, where the owner 
is known, is not required to be in writing. It may be given verbally. The following may be 
the form of the notice for posting when the owner is unknown, and which may be used when 
the owner is known if desired to give written notice : 

Form of Notice to Owner of Animals Found Trespassing on the Land of 

Another, to be Posted. 
To the owner of the animals herein described : 

You, said owner, are hereby notified that on the day of , 18 — , 

three certain cows entered wrongfully upon my premises [or as the case 

may 6e], in the town of , in the county of , State of Illinois, 

and that I then and there took the same into my possession, at my resi- 
dence at [give place of residence wilh reasonable certainly'], where 



OIY. IV.] FENCING RAILROADS. 319 



FENCING KAILEOADS— CEOSSINGS.(l) 

Part of AN ACT in relation to fencing and operating railroads. [Approved March SI, 1874. 1* 

force July 1, 1874.] 

iBCTCON. 

1. Fencing track. 

1£. Right of way clear of combustibles. 

2. Allowing, etc., animals on right of way— Breaking fence, etc 

3. Where company neglects to build— Notice. 

4. Adjoining owner may build and recover. 

5. Roads at crossings. 

6. Bell and whistle — Crossings. 

6J. Killing stock— Frightening team. 

7. Starting train without signal. 

8. Approaches at crossings. 

9. Neglect to make, etc., crossings — Notice. 

10. When company neglects, authorities to construct, etc 

11. Company to pay expenses and $100. 
14. Not to obstruct highway. 

35. Flagman— Shelter. 

36. Penalties. 

37. Corporation defend. 

38. Street railroads. 

1. Fencing track.] § 1. That every railroad corporation, shall, 
within six months after any part of its line is open for nse, erect 
and thereafter maintain fences on both sides of its road, or so 
mnch thereof as is open for use, suitable and sufficient to prevent 
cattle, horses, sheep, hogs or other stock from getting on such 
railroad (except at the crossings of public roads and highways, 
and within the limits of cities and incorporated towns and vil- 
lages,) with gates or bars, at the farm crossings of such railroad, 
which farm crossings shall be constructed by such corporation 
when and where the same may become necessary, for the use of 
the proprietors of the lands adjoining such railroad ; and shall 
also construct, where the same has not already been done, and 
thereafter maintain at all road crossings now existing, or hereafter 
established cattle guards, suitable and sufficient to prevent cattle, 
horses, sheep, hogs and other stock from getting on such railroad ; 

they still remain, and are held by virtue of the statute in such cases made 
and provided. Said cows are described as follows: One a red cow {giv- 
ing description], one a white cow, {giving description], and the other a 
black cow [giving discription]. 
Dated this day of , 18—. A. B. 

Where two persons own land adjoining each other, and Join fences, each build- 
ing the fence on his own land, and have no partition fence between them, and cattle break 
through the defective fence of one and enter the premises of the other, the latter would have 
no right to take them up or recover for injuries against the owner of the stock. Stoner et cU. v. 
BhugarU, Jr., 45 111. R., 77. See Buckmaster v. Cool, 12 111. R., 76, and McCormick v. TaU, 20 Dl. 
R.,334. 

(1) So much of the above act only Is Inserted here as seems to have any connection 

with affairs under township organization, or duties of town officers. That portion which relate* 
to public roads and highways concerns the commissioners of highways of the town. 



320 



FENCES. [diy. rvv 



and when such fences or cattle guards are not made as aforesaid^ 
or when such fences or cattle guards are not kept in good repair, 
such railroad corporations shall be liable for all damages which 
may be done by the agents, engines or cars of such corporation, 
to such cattle, horses, sheep, hogs or other stock thereon ; but 
when such fences and guards have been duly made and kept in 
good repair, such railroad corporation shall not be liable for any 
such damages, unless negligently or willfully done.(l) [L. 1855, p. 
173, § 1. [As amended by act, approved May 23, 1877. 



(1) The law prohibiting domestic animals from running at large, in force Oc- 
tober 1, 1872, does not by implication repeal or nullify any of the provisions of the act requiring 
railroad companies to fence their roads, and the same is true with regard to the law preventing 
male animals from running at large. R. R. I. & SL Louis R. R. Co. v. Irish, 72 111. R., 404. 

The obligation of a railroad company to fence its line of road does not attach 
until it has been in operation six months, and where the company has not been in operation 
six months, but had constructed a fence, it is under no obligation to keep it in repair, the duty 
not having attached. Toledo, Peoria & Warsaw R. R. Co. v. Miller, 45 111. R., 42. The compan ies 
are liable, under the statute, if they fail to fence within six month after they begin to run trains 
on the track for construction purposes. R. R. & St. L. R. R. Co. v. Hefiin, 65 111. R , 366. 

Where a railroad company fails to fence Its track, as required by the statute, it 
must see that its servants so conduct its trains that injury shall not result to stock that may get 
upon its track, if it can be avoided by care and caution. In failing to fence, it takes the hazard, 
and when injury results therefrom, it must be required to respond in damages. Toledo, Peoria 
<fe Warsaw R. R. Co. v. Levery, 71 I1L R., 522. 

Where a railroad company, whose road has not been in operation six months 

and is not fenced, its only ground of liability for injury to stock will be that the injury might 
have been avoided by the exercise of ordinary care and prudence, and its servants in charge 
failed to exercise such care and prudence. The Oilman, Clinton <fc S. R. Co. v. Spencer, 76 111. 
R.,192. 

. Where a railroad company fails to fence its track as required by law, or hat 
erected an insufficient fence, or failed to maintain a fence, it is liable for all damages resulting 
from such omissions of duty, and this without any reference to the manner in which its engines 
may have been controlled. St. Louis, Alton 6c Terre Haute R. R. Co. v. Linder et at., 4y ILL R., 433 ; 
Same v. Todd, 36 111. R., 409. 

The question of the obligation of a railroad company to fence their road at a par- 
ticular place is one of law, not of fact, and should not be left to a jury to decide. Illinois Centroi 
R. R. Co. T. Whalen, 42 ILL R., 396. 

In cases where a railroad company are not bound to fence their road, or where 
others are equally bound to fence, they are nevertheless bound to use ordinary care in running 
their trains to prevent the injuring of stock. They would be liable tor injuries in case of gross 
negligence in this regard. Headen t. Rust, 89 111. R., 186; SL Louis, Alton 6c Terre Haute R. R. Co. 
t. Linder et al„ 39 111. R„ 433. 

"Where an accident is attributable to a defective fence, which it was the duty of 
the company to provide, if the company has failed to erect a suitable fence, negligence is in- 
ferred; but where they have performed this duty, then negligence must be proved as inordinary 
cases. Illinois Central R. R. Co. v. Whalen, 42 111. R., 396. 

The necessity of fencing a railroad at a given point is not obviated by there being 
An embankment at that place from twelve to twenty feet in height, it not appearing that the em- 
bankment was sufficient to prevent stock from getting upon the track. Toledo, Peoria 6c War$au> 
R, R. Co. v. Sweeney, 41 111. R., 226. 

A railroad company are not required to fence their track upon their depot grounds 
in a town. Q. & C. U. R. R. Co. t. Griffin, 31 ILL R., 303. 

A railroad company is not bound to fence its track or make cattle guards within 
the limits of a village, and a place where there is a station house, a warehouse, a store, a black- 
smith shop, a post office, and five or six dwelling houses, comes fully up to the requirements of 
a village for the purpose of excusing a railroad company from fencing its track within the liinit* 
thereof Toledo, W.W. R'y Co. v. Spangler, 71 HI. R., 568. 

Railroad companies are not required by the statute to fence their line of road within the cor- 
porate limits of a town, and in actions against them to recover for injuries to stock, occurring 
within such limits, it is error to refuse so to instruct the jury. Chicago 6c Alton R. R. Co. t. Engle, 
58 111. R., 381. But if railroad companies construct cattle guards within the limits of towns, they 
should keep them in repair. C. 6c R. I. R. R. Co. v. Reid, 24 m. R., 144. 

The necessity for a fence where the contrary is alleged, in case of injury, is shown by proof 
that the cattle were upon the track. Toledo, Peoria 6c Warsaw R. R. Co.r. Sweeney, 41ULR., £/& 



DIT. IV.] FENCING RAILROADS. 321 

1$. Eight of way clear of combustibles.] § 1£. It shall be 
the duty of all railroad corporations to keep their right of way 

The fence must lie suitable and sufficient, so as to turn stock, even though to soma 
extent unruly. C. & A. R. R. Co. v. UUey, 38 111. R., 410. 
If a railway company neglects to comply with the statute, and an Ajury to an 

animal occurs, which is fairly attributable to such neglect, the mere fact that the animal is at 
large, if so at large in violation of no general or local law, will not relieve the company of its 
liability, even though the animal may go upon the track from uninclosed lots adjacent to the 
crossing, and is not standing, when injured, on the actual intersection of the railway and the 
highway. Toledo, Wabash & Western R. R. Co. v. Fwrgusson, 42 111. R., 449. See, also, C. B. <fc Q. 
R. R. Co. v. Kaufman, 38 111. R, 425. 

The owner of a horse -who voluntarily permitted the same to run at large con- 
trary to the law in force in the county, cannot recover of a railway company for the killing of 
the same, on the ground that such railway company has failed to fence its track at the place 
where the animal was killed. The railroad company in such case will not be relieved of its 
duty to observe reasonable precaution to prevent injury. The Peoria, etc R. R. Co. v. Champ., 75 
111. R.578. 

No contributory negligence is chargeable to the owner of stock, where it 
breaks out of its pasture without his fault. The damages for stock killed through negligence 
merely, as a neglect to fence the track, is compensatory only. To authorize more, circumstan- 
ces of agravation must be shown. T. P. & W. R. Co. v. Johnson, 74 111. R., 83. 

Where a railroad company fails to fence its track, as required by law, it is suffi- 
cient, to fix its liability, if the plaintiff's stock, in consequence thereof, and without any con- 
tributory negligence on his part goes upon the track of the railroad, and is there killed or in- 
jured by the company's locomotive or train. The fact that the owner of stock permits it to run 
at large, in violation of the act prohibiting domestic animals running at large, does not relievs 
the railroad companies from iheir duty of fencing their roads, or their liability for stock injured 
in consequence thereof. Ewing v. C. dc A. R. R. Co., 72 111. R., 25. 

Although a plaintiff may be guilty of negligence in permitting animals at 
large getting upon a railroad track, it is still the duty of the railroad company to use ordinary 
skill and prudence to avoid doing them injury, and failing in this, it is liable. R. R. I.& St. L. 
R. Co. v. Irish, 72 111. R., 405. 

A verbal agreement between a property owner through whose field a railroad passed and 
the railroad company, that if the company would erect certain cattle guards they need not fence 
the sides of their road, and he would not claim damage for injury done by the road to his stock 
getting thereon from the field, does not pass to or bind his grantee of the premises. St. L., A.& 
T. H. R. R. Co. v. Todd, 36 111. R., 409. 

Where cattle are injured upon a railroad at a place where the company are required by 
law to fence the road, and it has been in operation several years without that having been done. 
the company are liable lor the damages resulting from such neglect of duty. Toledo, Peoria <5t 
Warsaw Railway Co. v. Wickery, 4 111. R., 76. 

A railroad company passing through a common field, at which there was a cross- 
ing at the railroad track inside the inclosure used principally by the parties residing therein, it 
was held, that such crossing was not a public crossing, that it was the duty of the railroad com- 
pany to place bars or gates there, and if it failed to do so, it would be liable for any injury to 
etock by its trains. Peoria, Pehin & Jacksonville R. Co. v. Barton, 80 111. R., 72. 

Where stock is killed by a railroad at a place where no fence is required by law, 
to recover it must be proven that the killing of the stock was caused through the negligence at 
the company. I. C. R. R. Co. v. Bull, 72 111. R., 537. 

Where two railroad companies are using the same line of road, one company 
being the owner, and the other using the road by its permission, the company owning the 
track is liable ior damages done, by reason of an unfenced track, by the trains of the other 
company, the same as ii done by its own trains, and the company committing the injury will 
also be liable. Toledo, Peoria & Warsaw Railway Co. v. Rumbold, 40 111. R., 143; Illinois Central 
R. R. Co. v. Kanouse, 39 111. R., 272 ; East St. L. dec. Co. v. Gerber, 82 111. R, 632. 

In the absence of proof of negligence, a railroad company is not liable for the killing 
of cattle which had strayed on to its track at a common or public road crossing. LogansjjorZ 
Peoria & Burlington R. R. Co. v. Caldwell, 38 111. R, 2b0. 

"Where stock get upon a railroad track without the fault of the company, the 
law requires evidence beyond the mere proof that they were injured by the engine and car- 
riages of the company on the road, to establish a liability for such injuries; there must, in nuch 
case, be proof of negligence on the part of the agents and servants of the company in charge of 
the train at the time the injury occurred. Chicago 4c Northwestern Railway Co. v. Barrie, 65 IU. 
R, 226. 

Railroad companies are liable for killing mules and asses, these animals being In- 
cluded \n the term " cattle and horses." Ohio 4c Mississippi R. R. Co. v. Brubaker, 47 111. R, 4fi2. 

When a fence along a railroad has been sufficient, and from accident or wrong, 
over which the compary had no control, it becomes insufficient to turn stock, they have a rea- 
sonable time within which to repair it. It is not required that the company should have a 

21 



322 FENCES. [DIY. 17. 

clear from all dead grass, dry weeds or other dangerous or com- 
bustible material ; and for neglect, shall be liable to the penalties 
named in section one.(l) 

2. Allowing, etc., animal on right of way— Breaking fence, etc. ] 
§ 2. If any person shall ride, lead or drive any horse or other 
animal upon the track or lands of such railroad corporation, and 
within such fences or guards (except to cross at farm or road 
crossings,) without the consent of the corporation ; or shall tear 
down or otherwise render insufficient to exclude stock, any part 
of such fence, guards, gates or bars — or shall leave the gates or 
bars at farm crossings, open or down — or shall leave horses or 
other animals standing upon farm or road crossings, he shall be 
liable to a penalty of not less than $10, nor more than $100, to 
be recovered in an action of debt, before any court having com- 
petent jurisdiction thereof, in the name of such railroad corpora- 
tion, and for the use of the school fund in the county, and shall 
pay all damages which shall be sustained thereby to the party 
aggrieved. [L. 1855, p. 174, § 3. 

3. When company neglects to build— Notice.] § 3. When- 
ever a railroad corporation shall neglect or refuse to build or re- 
pair such fence, gates, bars or farm crossings, as provided in this 
act, the owner or occupant of the lands adjoining such railroad, 
or over or through which the railroad track is or may be laid, 
may give notice, in writing, to such corporation, or the lessees 
thereof, or the persons operating such railroad, to build such 
fence, gate, bars or farm crossings within thirty days (or repair 
said fence, gate, bars or farm crossings, as the case may be, 
within ten days,) after the service of said notice. Such notice 
shall describe the lands on which said fence, gates, bars or farm 
crossings are required to be built or repaired. Service of such 
notice may be made by delivering the same to any station agent 
of said railroad corporation or the persons operating such rail- 
road.^) [L. 1869, p. 315, § 1. 

Satrol at all times, night and day, passing along their road to see the condition of the fence. If 
lis is done daily, and they shall at once, when informed of its insufficiency, make the neces- 
Bary repairs, they should not be held liable for injuries resulting from its temporary insufficient 
condition. The company mubt be held to a high degree of diligence, but not to an impossible 
or unreasonable extent. Illinois Central R. R. Co. v. Suearingen, 47 111. R., 206. 

(1) Where a railroad company suffered a heavy growth of dry grass tt remain 
on its right of way through a party's premises, and fire was communicated from the locomoti \ e of 
a freight train, to the grass and weeds on the way and from thence communicated to the fences 
and grass of the plaintiff, which was destroyed, Held, that the company was guilty of negli- 
gence, and the plaintiff entitled to recover. R. R. I. & St. L. R. R. Co. v. Rogers, 62 ILL R.. 346. 

(2) Form of Notice to Railroad Company to Build or Repair Fence, eta. 

To the Railroad Co. : 

You are hereby notified that I require you to build [or repair] the fenc« 
along the line of your road on the following described land adjoining your 
said road, of which I am the owner [or occupant], to- wit: [describe th* 



DIT. JT.] RAILROAD CROSSINGS. 323 

4. Adjoining owner may build and recover.] § 4. If the party 
so notified shall refuse to build or repair such fence, gates, bars 
or farm crossings, in accordance with the provisions of this act, 
the owner or occupant of the land required to be fenced shall 
have the right to enter upon the land and track of said railroad 
company, and may build or repair such fence, gates, bars or farm 
crossings, as the case may be, and the person so building or re- 
pairing such fence, gates, bars or farm crossings, shall be entitled 
to double the value thereof from such corporation or party actu- 
ally occupying or using such railroad, to be recovered with inter- 
est at one per cent, per month, as damages, from the time such 
fence, gates, bars or iarm crossings were built or repaired in any 
court of competent jurisdiction, together with costs, to be taxed 
by the court. 

5. Boards at crossings.] § 5. Every railroad corporation shall 
cause boards, well supported by posts or otherwise, to be placed 
and constantly maintained upon each public road or street where 
the same is crossed by its railroad on the same level. Said boards 
shall be elevated so as not to obstruct the travel, and to be easily 
seen by travelers. On each side of said boards shall be painted 
in capita] letters, of at least the size of nine inches each, the 
words "Kailroad Crossing," or "Look out for the cars." This 
section shall not apply to streets in cities, or incorporated towns 
or villages, unless such railroad corporation shall be required to 
put up such boards by the corporate authorities of such cities, 
towns or villages : Provided, that when warning boards have al- 
ready been erected, under existing laws, the maintenance of the 
same shall be a sufficient compliance with the requirements of 
this section. [L. 1849, p. 32, § 39. 

6. Bell and whistle— Crossings.] § 6. Every railroad corpora- 
tion shall cause a bell, of at least thirty pounds' weight, and a 
steam whistle placed and kept on each locomotive engine, and 
shall cause the same to be rung or whistled, by the engineer or 
fireman, at the distance of at least eighty rods from the place 
where the railroad crosses or intersects any public highway, and 
shall be kept ringing or whistling until such highway is reached.(l) 
[L. 1869, p. 308, § 1. 

premises with reasonable certainty], which fence I require you to build 
within thirty days [or repair within ten days] after the service of this 
notice. 
Dated and served this day of , 18 — . A. B. 

▲ copy of this notice should be retained by the person serving it 

(1) The law does not require a railroad company to ring a bell or sound a whistle 
at a farm crossing. Toledo, Peoria & Warsaw Railway Co. ▼. Head, 62 111. R., 233. 

"When a railroad crossing is an unusually dangerous one, on account of the 
hiliy lormation of the road and parties could not see the track, owing to brush and bushes, until 



324 FENCES. [DIV. IV, 

6 J. Killing stock— Frightening team.] § 6 \. Any engineer, 
or person having charge of and running any railroad engine or lo- 
comotive, who shall willfully or maliciously kill, wound or disfigure 
any horse, cow, mule, hog, sheep or other useful animal, shall, 
upon conviction, be fined in the sum of not less than the value of 
the property so killed, wounded or disfigured, or confined in the 
county jail for a period of not less than ten days ; and any such 
engineer or fireman, or other person, who shall wantonly or unnec- 
essarily blow the engine whistle, so as to frighten any team, shall 
be liable to a fine of not less than $10 nor more that $50. See 
"Crim. Code," ch. 38, §191. 

7. Starting train without signal.] § 7. If any engineer on any 
railroad shall start his train at any station, or within any city, in- 
corporated town or village, without ringing the bell or sounding the 
whistle a reasonable time before starting, he shall forfeit a sum of 
not less than $10 nor more than $100 to be recovered in an action 
of debt in the name of the People of the State of Illinois, and such 
corporation shall also forfeit a like sum, to be recovered in the 
same manner. 

8. Approaches at crossings.] § 8. Hereafter, at all of the railroad 
crossings of highways and streets in this state, the several railroad 
corporations in this state shall construct and maintain said cross- 
ings, and the approaches thereto, within their respective rights of 
way, so that at all times they shall be safe as to persons and prop- 
erty. [L. 1869. p. 312, § 1. 

9. Neglect to make, etc., crossings — Notice.] § 9. Whenever 
any railroad corporation shall neglect to construct and maintain any 
of its crossings and approaches, as provided in section 8 of this act, 
it shall be the duty of the proper public authorities, having the 
charge of such highways or streets, to notify, in writing, the near- 
est agent of said railroad corporation of the condition of said 
crossing or approaches, and direct the same to be constructed, al- 
tered or repaired in such manner as they shall deem necessary for 
the safety of persons and property.(l) 

within a few feet, and then only a small portion on account of a sharp curve in the road, held. 
that a neglect to sound the whistle or ring the bell would be gross negligence. Indianapolis <6 
St. Louis E. R. Co. t. Stables, 62 I1L R. , 313. 

(1) Form of Notice by Commissioners of Highways to Railroad Agent for 

Repair of Crossing. 

To A. B., nearest agent of the railroad corporation : 

In pursuance of the statute in such cases made and provided, the com- 
missioners of highways of the town of , in the county of , and 

State of Illinois, being the proper public authorities having charge of the 
highways in said town, do hereby notify you, as the nearest agent of the 
above named railroad corporation, that the crossing [or approaches to the 
crossing] of said railroad, at the point where the same intersects the high- 



tr.V. IV.] RAILROAD CROSSINGS. 325 

10. When company neglects, authorities to construct, etc.] § 10. 

If any railroad corporation of this state shall, after having been 
notified, as provided in section 9 of this act, neglect or refuse to 
construct, alter or repair such crossing or approaches within thirty 
days after such notice, then said public authorities shall forthwith 
cause such construction, alteration or repairs to be made. 

11. Company to pay expenses and $100.] § 11. Said railroad 
corporation shall be holden for all necessary expenses incurred in 
making such construction, alteration and repairs, and in addition 
thereto shall be liable to a fine of $100 for such neglect to comply with 
the requirements of this act, which fine shall be enforced by the said 
public authorities, in the name of the People of the State of 
Illinois, before any court of competent jurisdiction in the county. 
Such fine, when collected, to be paid into the treasury of the au- 
thorities enforcing the fine. 

14. Not to obstruct highway.] S 14. No railroad corporation 
■shall obstruct any public highway by stopping any train upon, or by 
leaving any car or locomotive engine standing on its tract where the same 
intersects or crosses such public highway, except for the purpose of re- 
ceiving or discharging passengers or freight, or for taking in or setting 
out cars, or to receive the necessary fuel and water, and in no case to 
exceed ten minutes for each train, car on locomotive engine. 

Any person who shall throw any stone, or other hard substance at any 
railroad car, train or locomotive, shall be deemed guilty of a mis- 
demeanor, and on conviction thereof shall be fined in any sum not more 
than §200, and shall stand committed to the county jail until such fine 
and costs shall be paid. [As amended June 21, 1895.] 

*********** 

35. Flagmen — shelter.] § 35. In all cases where the public 
authorities having charge of any street over which there shall be a rail- 
road crossing, shall notify any agent of the corporation owning, using 
or operating such railroad, that a flagman is necessary at such crossing, 
it shall be the duty of such railroad company, within sixty days there- 
after, to place and retain a flagman a such crossing, who shall perform 
the duties usually required of flagmen ; and such flagman is hereby em- 
powered to stop any and all persons from crossing a railroad track when, 
in his opinion, there is danger from approaching trains or locomotive en- 
gines ; and any railroad company refusing or neglecting to place flagmen, 
as required by this section, shall be liable to a fine of $100 per day for every 

way leading- from to [describe place of crossing, with certainty,] is out 

of repair stating wherein; or if the crossing or approaches have not been con- 
structed, state accordingly,] and said commissioners do direct that the same be 
repaired [or constructed or altered] in manner followiug [state what is required] 
Dated, etc. (Signed by board of highway commissioners.) 



326 



FENCES. [DIY. TV. 



day they shall neglect or refuse to do so ; and it is hereby made 
the duty of such public authorities having charge of such street, to 
enforce the payment of such fine, by suit, in the name of the town 
or municipal corporation wherein such crossing shall be situate, 
before any court of competent jurisdiction in the county, and the 
prosecuting attorney shall attend to the prosecution of all suits as 
directed by said public authorities. All the moneys collected under 
the provisions of this act shall be paid into the treasury of the 
town or municipal corporation in whose name such suits shall have 
been brought : Provided, that when any railroad company is re- 
quired to keep a flagman at a crossing, it shall have the right to 
erect and maintain in the highway or street crossed a suitable 
house for the shelter of such flagman, the same to be so located as 
to create the least obstruction to the use of such street or highway, 
and afford the best view of the railroad track in each direction 
from such crossing.(l) [L. 1869, p. 314, § 8. 

36. Penalties.] § 36. If any railroad corporation, or any of its 
agents, servants or employees, shall violate any of the provisions of 
this act, such corporation, agent, servant or employee shall, sever- 
ally, unless otherwise herein provided, be liable to a fine of not 
less than $10 nor more than $200, to be recovered in an action of 
debt, in the name of the People of the State of Illinois, for the use 
of any person aggrieved, before any court of competent jurisdic- 
tion. 

37. Corporation defined.] §37. The word "corporation," as 
used in this act, shall be construed to include all companies, 
lessees, contractors, persons, or association of persons, owning, 
operating or using any railroads in this state. 

38. Street railroads.] § 38. This act shall not apply to horse 
cars or street railroads. 

(1) Streets in cities and villages or town plats are public highways and In towns 

not incorporated such streets would he subject to the care and superintendence of the conimis- 
fdonera of highways of the town. 

Tlie legislature may compel railroads to fence their tracks, and this may be done 
by the imposition of fines, penalties or forfeitures. C & St. L. E. E. Co. v. Warrington, 92 III. 
R., 157. 

A railway company is under obligation to leave every highway that it crosses in 
a safe condition for the use of the public in the absence of any provision in its charter to the 
contrary, and where this duty was imposed by the original charter, under which a railroad 
was built, the same duty will rest upon any company who may afterward own the road, so long 
as the samd is operated. The People v. C. & A. E. E. Co., 67 111 R., 118. 

Although railroad companies are not required or cannot fence their tracks in an 
incorporated town, still they are bound to use all due and proper diligence to avoid injury to 
both persons and property; and they are not relieved from this duty even where stock is 
wrongfully running at large or trespassing on their track or right of way. T., W. & W. E'y Co. 
v. McGinnis, 71 111. R., 346. 

A railroad eompany is liable for obstructing the streets of a town with its cars. Ill- 
OMt E ° Uo. V. City of Galena, 40 111. R., 344; T., P. & W. E'y Co. v. Town of. Chenoa, 43 111 
-\,209 



DIV. IV.] HEDGE FENCES. 32? 



HEDGE FENCES. 

A.N ACT to amend sections two (2) and three (3) of an act entitled "An Act concerning hedga 
fences along the public highways in this state," approved June 21, 1883. In force July 1, 
1883, and to add a section to said act to be knowu as section four (A). Approved June 3, 
1889. In force July 1, 1889. 

[Sec. 1 of this act declares only that sections 2 and 3 of the act men- 
tioned in the title are amended, without mention of section I. In 
reality, sections 2, 3 and 4 of this act are sections 1, 2 and 3 of the 
act of 18S3, remodeled as follows:] 

2. Heds^e fences along highways] § 2. The owner or owners 
of any hedge fence along the line of any public highway in this 
state shall, during the year next after such hedge shall have obtained 
the age of seven years, cut back or trim such hedge fence, except Osage 
hedge, which shall be trimmed annually after the second year from 
first trimming, to a height not exceeding four feet, and shall at least 
once in every year thereafter cut back or trim such hedge fence so that 
the same shall not exceed the height of five feet, so that such public 
highway shall not be obstructed or impaired in usefulness or conven- 
ience, nor the public health injured or jeopardized by such hedge fence: 
Provided, that the provisions of this section shall not apply to any 
hedge protecting either an orchard or building: Provided, further, 
that upon application by the owner of any hedge fence along any high- 
way to the commissioners of highways of the town where situated in 
counties under township organization, or to the supervisors of high- 
ways in the road district where situated, in counties not under township 
organization, said commissioners of highways, or supervisors of high- 
ways, as the case may be, may, at their discretion, permit said owner to 
grow a hedge fence not to exceed one -fourth the total length of hedge 
fence along the highway on each farm of said owners to any height de- 
sired by said owner, as a windbreak for stock: Provided, further, 
that said owner shall keep all such hedges trimmed on the roadside, so 
that the same will not obstruct the public highway to exceed four feet 
from the line of said public highway. (1) 

(1) Form of Application by Owner to Grow Hedge Fence as a Windbreak. 

To A. B., C. D. and E. F., commissioners of highways of the town of 
, in county, State of Illinois: 

The undersigned being the owner of a hedge fence along the highway 
in said town at [here stale portion of highway where hedge fence is loca- 
ted], hereby makes application to you as such commissioners of high ways 

for permission to grow a hedge fence of the length of rods [not to 

exceed, one-fourth of the total length of hedge fence] aloDg the highway at 

the above named place, to the height of feet, the same being 

desired as a windbreak for stock. G. H. 

Dated the day of , 18—. 

It is proper tliat the consent of the commissioner* should be endorsed on such appli- 
cation, and the endorsement uiay be in the iollowiiig form: 



328 FENCES. [div. IV. 

3. Non-compliance — penalty.] § 3. If the owner or owners 
of any such, hedge fence shall fail or refuse to comply with the provis- 
ions of this act on or before the first day of October of each year the 
said owner or owners shall be subject to a fine of not less than ten ($10) 
nor more than fifty ($50) dollars in each and every year failing to com- 
ply with the provisions of this act. Said fine may be recovered, with 
costs of suit, against the owner or owners of such hedge fence before 
any justice of the peace or other court of competent jurisdiction of the 
county in which said hedge is situated, by suit in the name of the com- 
missioners of highway of the township of the counties under township 
organization, or commissioners of highway in the road district in coun- 
ties not under township organization in which such hedge fence may 
be situated, said fine to be applied for the use of the road districts in 
which hedge fence may be growing, and the commissioners of high- 
ways shall bring or cause to be brought, such suit, in accordance with 
section threo (3). of this act. 

4. Non-resident owners — cost of trimming.] § 4. That 
when the owner of such hedge fence does not reside in the county 
where such hedge fence is situated, and refuses or neglects to cut or 
cause the same to be cut, it shall be the duty of the commissioners of 
highways of the township or road district in which such hedge fence 
is situated, to cut, or cause such hedge fence to be cut or trimmed at 
any time after the first day of October in each and every year as is re- 
quired by this act. The cost of cutting or trimming and all costs that 
may accrue by the cutting or trimming of such hedge fence may be re- 
covered by such commissioners of highways in any action of debt in any 
court of competent jurisdiction against the owner of the land in which 
said hedge fence may be situated, and the commissioners of highways 
shall bring or cause to be brought, such suit in accordance with the 
provisions of section three (3) of this act 

I 
Form of Consent by Commissioners to Grow Hedge Fence as a Windbreak. 

State of Illinois, 

County, [-ss. Board of Commissioners of Highways. 

Townof- 



»is, 1 
inty, V 



Consent is hereby given by the commissioners of highways of the town 

of , to G. H. to grow a hedge fence for the length of rods an- 1 

to the height of feet, along the highway at [here state location a* 

in application] as a windbreak for stock, in accordance with the within 
application. 

Given under our hands this day of , 18—. 

A. B., ) Commissioners 

C D., \ of 

E. F., J Highways. 



£>IV. V.] SUPPORT OF THE POOR. 329 



DIVISION V. 

PAUPERS. 

kN ACT to revise the law In relation to paupers. [Approved March 23, 1874. In force July V 

187-L Rev. Stat., ch. 107.] 

SUPPORT OF THE POOR. 
Section. 

1. Who liable to support. 

2. Who first called upon. 

3. Complaint by state's attorney. 

4. Complaint by overseer of poor. 
6. Summons. 

6. Trial — Judgment. 

7. Contribution. 

8. Partial support. 

9. Time of maintenance and payment. 

10. Order may be changed. 

1 1 . How payment enforced. 

12. Costs. 

1 3. Bringing pauper into county — Penalty. 

14. Support of paupers by county. 

15. Support by towns. 

16. Removal of pauper not resident of county or town. 

17. "Residence" defined. 

18. Overseers in counties under township organization. 

19. In counties not under township organization. 

20. Duties of overseers. 

21. Letting out support of poor. 

22. Bond. 

23. Temporary relief. 

24. Aid to non-resident poor — Burial. 

25. Report of overseers to county board. 

26. Appropriations. 

27. Report of overseers to town auditors. 

28. Powers of county board. 

1. Erecting and maintaining poor-house and farm. 

2. Gifts, bequests, etc., in aid. 

3. Rules, etc., for government. 

4. Appointment of keeper and servants, etc. 

5. Appointment of county physician, etc. 

6. Appointment of county agent. 

7. Appropriations. 

8. Sale of poor farm. 

29. Account by overseers. 

80. Account by county agent. 

31. Account by keeper of poor-house. 

32. Penalty for neglect to report. 

33. Poor to be kept at poor-house. 

34. Curative. 

35. Township support, how abandoned. 

1. Who liable to support] § 1. Every poor person* who shall 
'be unable to earn a livelihood in consequence of any bodily in- 
firmity, idiocy, lunacy or other unavoidable cause, shall be sup- 



330 PAUPEES. [div. v. 

ported by the father, grandfather, mother, grandmother, children, 
grandchildren, brothers or sisters of such poor person, if they, 
or either of them, be of sufficient ability: Provided, that when 
any persons become paupers from intemperance, or other bad 
conduct, they shall not be entitled to support from any relation 
except parent or child.(l) [K. S. 1845, p. 402, § 1. 

2. Who first called on.] § 2. The children shall first be called 
on to support their parents, if there be children of sufficient 
ability ; and if there be none of sufficient ability, the parents of 
such poor person shall be next called on if they be of sufficient 
ability; and if there be no parents or children of sufficient 
ability ; the brothers and sisters of such poor person shall be 
next called on if they be of sufficient ability ; and if there be no 
brothers or sisters of sufficient ability, the granchildren of such 
poor person shall next be called on if they be of sufficient ability \ 
and next the grandparents, if they be of sufficient ability : 
Provided, married females, while their husbands live, shall not 
be liable to contribute for the support of their poor relatives, 
except when they have separate property, or property in their 
own right, out of which such contributions can be made. [R. S. 
1845, p. 402, § 2. 

3. Complaint by state's attorney.] § 3. Upon any failure of any 
such relative, or relatives, to support such poor person as pro- 
vided by this act, it shall be the duty of the state's attorney to 
make complaint thereof to the county court of his county, 
against all the relatives of such pauper in this state, liable to 
his support, and prosecute the same. 

4. Complaint by overseer.] § 4. The complaint provided for 
in the preceding section may also be made by the overseer of the 
poor of the town or precinct where the poor person may reside, 
and it shall be the duty of such overseer to make such complaint 
in all cases where there may not be a county agent or state's at- 
torney, or when the county agent or state's attorney shall refuse 
or neglect to make the same. 

5. Summons.] § 5. At least ten days' notice of such applica- 
tion shall be given to the defendant, by summons, requiring him 
to appear and answer the complaint. 

6. Trial— Judgment.] § 6. The defendants being duly noti- 
fied, the court shall proceed in a summary way to hear the proofs 

(1) A pauper, under our statute, Is a person destitute of pecuniary means and un- 
able to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy or other unavoid- 
able cause. Williams v. Franklin, 39 111. R., 22. 

Where a man has been supplied at his own request as a pauper for many months, it is 
rood evidence, so far as he is concerned, that he is a pauper. Hunnewell v. Hobart, 40 Maine R., 28. 

A pauper is denned to be a poor person, particularly one so indigent as to depend 
upon the parish or town for support Lee County v. Lackie, 30 Ark. R., 764, 



DIY. Y.] SUPPORT OF THE POOR. 331 

and allegations of the parties, without further written pleadings, 
and if satisfied by the allegations and proofs that the defendants, 
or any of them, are not supporting such poor person, or contrib- 
uting their proper share for such support, in a manner suitable 
to the situation of such poor person, taking into account the 
ability of such defendants, then the court may at the time of 
giving judgment in the case, and from time to time thereafter, 
make any and all necessary orders in regard to the custody of 
such poor person, and for the payment weekly to the overseer of 
the town or precinct, or to such other person as the court shall 
direct, of such sum, to be applied in the support of such poor 
person, as in the opinion of the court is necessary to so properly 
support such poor person, taking in view the ability of the de- 
fendants to furnish such support. The court may discharge any 
defendant that may appear not to be liable for such support, or 
who is contributing his fair share thereof. 

7. Contribution.] § 7. If it shall appear that the relatives of 
a certain degree are unable wholly to maintain such poor person, 
but are able to contribute towards his support, the court may, in 
its discretion, direct two or more relatives of different degrees to 
maintain such poor person, and shall prescribe the proportion 
which each shall contribute for that purpose. 

8. Partial support.] § 8. If it shall appear that the relatives 
liable, as aforesaid, are not of sufficient ability wholly to main- 
tain such poor person, but are able to contribute something, the 
court shall direct the sum, in proportion to their ability, which 
such relatives shall pay weekly for that purpose. 

9. Time of maintenance and payment.] §9. The order may 
specify the time during which the relatives aforesaid shall main- 
tain such poor person, or during which any of the sums so di- 
rected shall be paid, or it may be indefinite, and until the further 
order of the court. 

10. Order may be changed.] § 10. The court may from time 
to time, vary such order whenever circumstances shall require it, 
on the application either of any relative affected thereby, or of 
the county agent or overseer of the poor, upon ten days notice 
being given to the opposite party. 

11. How payments enforced.] § 11. Payment of the several 
sums under such order as they fall due may be compelled by at- 
tachment as for contempt against the persons of the defendants, 
or by execution against their lands and tenements, goods and 
chattels, or both, in like manner as other judgments at law or 
decrees in chancery. 

12. Costs.] § 12. In every such application, if the judgment 
shall be against the defendant, he shall also be adjudged to pay 



332 paupers. [div. v. 

the costs of the proceeding, or the costs may be apportioned ac- 
cording to the rights of the case, but if the application is dis- 
missed it shall be at the costs of the county or town on whose 
behalf the application is made. [§ 3-13, see act of 1869. L. 
1869, p. 369. 

13. Bringing panper into county— Penalty.] § 13. If any 

person shall bring and leave any pauper in any county in this 
state, wherein such pauper is not lawfully settled, knowing him 
to be a pauper, he shall forfeit and pay the sum of $100 for every 
such offense, to be sued for and recovered by and to the use of 
such county bv an action of debt, by any justice of the peace in 
the proper county. [E. S. 1845, p. 404, § 16. 

14. Support by county.] § 14. Every county (except those in 
which the poor are supported by the towns) shah* relieve and sup- 
port all poor and indigent persons lawfully resident therein, except 
as herein otherwise provided.(l) [E. S. 1845, p. 402, § 3. 

15. Support by towns.] § 15. Every town in counties in which 
the poor are supported by the towns (as provided by law) shall 
relieve and support all poor and indigent persons lawfully resident 
therein, except as herein otherwise provided. 



(1) The duty of supporting the paupers resident in the various counties of this 
State, is imposed upon such counties, and they are bound by all contracts for the support of such 
persons, when legally entered into by the proper officer. Supervisors of Clay County v. Plant, 42 
111. R., 324. 

The statute makes the respective counties liable for clothes furnished patients In 
the hospital, who are paupers and county charges. Opinion Att'y Gen. Edsall, May 3, 1875. 

It is the duty of the counties to maintain all paupers in their counties, and it if 
Immaterial whether they are found in cities villages or other parts of the county. Opinion Att'y 
Gen. Edsall, January 27, 1876. 

There is no law in force authorizing a county to abandon the support of its 
poor, as a county, and adopt the system of separate support by the townships. Such change 
cannot be made without further legislation. Opinion Att'y Gen. Edsall, April 2, 1878. 

If the proper public authorities fail to provide a comfortable support of paupers, 
after notice of their condition, individuals may do so, and recover of the public therefor. Sea- 
greaves v. City of Alton, 13 111. R., 372. 

"Where a city voluntarily supports an insane person, having means of support, 
recovery cannot be had of the county therefor. City of Alton v. Madison County, 21 111. R., 115. 

It has been held to be the duty of overseers of the poor to relieve a person 
found in their town in distress, although he may have property of his own, not available for his 
immediate relief. Norridgewock v. Solon, 49 Maine R., X85. 

It has, in practice, always been supposed that when an overseer of the poor is unable to pro- 
cure any contract for the support of a pauper, and no poor house has been provided, or in case 
of urgency, he may purchase necessary articles for the relief of the pauper on credit of the 
county, and thus render it liable for payment Supervisors of Clay County v. Plant, 42 111. R., 325. 
See Clinton v. Benton, 49 Maine R., 550, 

But where contracts for the support of paupers, or for articles furnished, are extravagant or 
Improvident, the board of supervisors may, no doubt, reduce the amount to be paid. Super- 
visors of Clay County v. Plant, 42 111. R., 324. 

A county would probably not be liable for medical services rendered a pauper, 
unless ordered by the overseer of the poor, even where it was needed before such order could 
be obtained. French v. Benton, 44 N. Hamp. R., 28. 

Where goods are furnished to persons as paupers, and the amount is sought to b« 
recovered of the county, it should be shown that the persons to whom the goods were furnished 
were paupers, or the claim may properly be rejected. Board of Supervisors v. Newell et al., 81 111. 



DIV. V.] SUPPORT OF THE POOR. 



333 



16. Removal of pauper not resident of county, etc.] § 16. If 

any person shall become chargeable as a pauper in any county or 
town, who did not reside therein at the commencement of twelve 
months immediately preceding his becoming so chargeable, but did, 
at that time, reside in some other county or town in this state, it 
shall be the duty of the county or town clerk, as the case may be, 
to send written notice by mail or otherwise, to the county clerk of 
the county in which the pauper so resided, or if he then resided 
in a town supporting its own poor, to the town clerk of such town, 
requesting the proper authorities of such county or town to re- 
move said pauper forthwith, and to pay the expenses accrued and 
to accrue in taking care of the same ; and such county or town, as 
the case may be, where such pauper resided at the commencement 
of the twelve months immediately preceding such person becoming 
chargeable as a pauper shall pay to the county or town, so taking 
care of such pauper, all reasonable charges for the same, and such 
amount may be recovered by suit in any court of competent 
jurisdiction. (1) [As amended June 1, 1889. 

17. "Residence" defined.] § 17. The term "residence," men- 
tioned in this act, shall be taken and considered to mean the 
actual residence of the party, or the place where he was employed, 
or in case he was in no employment, then it shall be considered 
and held to be the place where he made it his home. (2) [B.. S* 
1845, p. 404, § 15. 



(1) Form of Notice to Remove Non-resident Pauper. 

To the county clerk of county, State of Illinois [or as the case may 

be]: 
You are hereby Dotified that one A. B. has become chargeable as a pau- 
per in the town of , county of , and State of Illinois, he not 

residing therein at the commencement of thirty days immediately pre- 
ceeding his becoming so chargeable, but did at that time reside in [state 
residence of the pauper], the proper authorities of said county [or town] 
are therefore requested to remove said pauper forthwith, and pay the ex- 
penses accrued and to accrue in taking care of the same. 

Dated at , this day of , A. D. 18—. 

CD., 
Town Clerk of the town of . 

(2) The settlement or residence ox" a pauper la the place of his birth until he acquires 
another derivatively from his parents or by acts of his own. Toby v. Madison, 44 Penn, St R. (8 
Wright), 60. 

After coming of age, » minor's removal elsewhere to reside, with no determinate 
Intention of departure, will fix his domicile there ; and it will not be altered by his afterwards 
going away temporarily with the intent to return. Hart v. Lindsey, 17 N. Hamp. R., 235. 

A person having a legal settlement In one place, that settlement continues until 
another is acquired in the State. A settlement in another state or county will not change that 
acquired in this State, if the pauper returns to it. Where a person moved into a town, pur- 
chased property, resided two years, and then left the State, leaving his family behind him, the 
settlement and residence of the family is there fixed; and, if they become paupers, they are a- 
charge upon such town or county. Payne v. Town of Dunham, 29 111. R., 129. See Tovm&end ▼< 
BiUeiica, 10 Mass. R.. all. 



334 PAUPERS. [div. v. 

18. Overseers of the poor.] § 18. In counties under township 
organization the supervisors of the respective towns therein shall 
be ex-officio overseers of the poor of their towns : Provided, That 
for towns containing four thousand (4000) inhabitants or over, 
upon written request of said supervisors, the county board may 
appoint an overseer who is a resident of said town, fix his com- 
pensation and term of office, which shall not exceed the term of 
said board. The overseer so appointed shall execute to the 
county an official bond in a penal sum and with sureties to be fixed 
and approved by the county board, conditioned for the faithful 
discharge of his duties and the due application of all funds or 
property which shall come to his hands as such overseer : Pro- 
vided, further, That this section shall not apply to counties con- 
taining over two hundred thousand (200,000) inhabitants.(l) [As 
amended, Laws 1877, p. 143. 

19. Overseers in counties not under township organization.] 

§ 19. In counties not under township organization, the county 
board shall designate some justice of the peace or some other 
suitable person in each precinct therein, who shall be overseer of 
the poor in such precinct. [R. S. 1845, p. 403, § 5. 

20. Duties of overseers.] § 20. The overseers of the poor shall 
have the care and oversight of all such persons in their town or 
precinct as are unable to earn a livelihood in consequence of any 
bodily infirmity, idiocy, lunacy or other unavoidable cause, and as 

An illegitimate child retains the settlement which his mother had at his birth 

until he gains one in his own right, notwithstanding that she subsequently acquires another. 
HaUoweU v. Augusta, 52 Maine R., 216. 

Persons acting under the legal authority of others, or not capable of acting for 
themselves for the want of mind, do not lose or acquire a residence thereby. Payne v. Town qf 
Dunham, 29 111. R., 125 ; Town of Freeport v. Stephenson County, 41 111. R., 501. The residence or 
settlement of such a person is derived from his father or those having paramount control over 
him. Payne v. Town of Dunham, 29 111. R. 128. 

A residence is not changed by absence for a temporary purpose only, if the 
person has sufficient intelligence to form and retain the intention of leaving for a temporary 
purpose and of returning ; and he does return, in accordance with such intention. Corinth*. 
Bradford, 15 Maine R., 540. The rule that a domicil once acquired is presumed to continue un- 
til a subsequent change is shown, applies to cases of settlement of paupers. Chickopeey. Whately, 
$ Allen R„ (Mass.) 508. 

The admissions of overseers of the poor in binding out, or their acts in providing 
support for a pauper, are not admissable in evidence against the town to prove the settlement of 
a person therein. New Bedford v. Taunton, 9 Allen (Mass.) 207 ; Dartmouth v. LdkevUle, Id., 211. 

By the division of a town, or the annexation of a portion of one to another, 
the pauper of the portion annexed does not lose his previous settlement or residence at the 
place where he had it when he became a public charge. Town of Freeport v. Stephenson County, 
Al 111. R., 495. See cases cited, Oxford v. Bethany, 15 Conn. R.. 252; vice versa, 550 ; Brewer v. 
Epdivgton, 42 Maine R.,541. Yarmouth v. North Yarmouth, 44 Maine R., 353; Southridge v. SharU 
ton, 15 Mass. R., 248. 

(1) Under the township organization law, It is not necessary that the justices 
©f the peace of the town shall join with the overseer of the poor in ordering goods tor 
the support of a pauper; he may act alone. The overseer of the poor alone is authorized to 
perform the duties of the office. Where he has entered into a contract for the support of a pau- 
per, the liability of a county is thereby fixed, andT?s agents have no discretion, but must dis- 
charge the obligation. Nor can the chairman of the board of supervisors, in such a case, by 
notice or otherwise, abridge the powers of the overseer of the poor. He derives his powers 
from the law, and not from the supervisors. Supervisors qf Clay County v. Plant, 42 111. R., 324. 



DIT. T.] SUPPORT OP THE POOR. 335 

are not supported by their relatives or at the county poor house, 
and shall see that they are suitably relieved, supported and em- 
ployed, subject to such restrictions and regulations as may be pre- 
scribed by the county board, or in case the poor are supported by 
the town, subject to such restrictions and regulations as may be 
prescribed by such town, [R. S. 1845, p. 403, § 6. 

21. Letting out support of poor.] § 21. Where the county has 
not a poor house at which its poor are supported, tho overseers of 
the poor of the respective towns or precincts shall commit the 
care of such poor persons as shall require to be supported by the 
county or by the town, to some moral and discreet householder in 
the town or precinct of sufficient ability to provide for them, and 
who will enter into a written contract with the county, (or, if the 
poor are supported by the town, with the town,) therefor upon 
such terms and conditions as may be approved by the county 
board or board of town auditors, as the case may be.(l) [R. S. 
1845, p. 403, § 6. 

22. Bond.] § 22. Every person to whom the care of the poor 
of any town or precinct shall be committed, shall execute to the 
oounty (or town, as the case may be,) a bond, with such security 
as the county board (or board of town auditors, as the case may 
be,) shall require, conditioned that he will treat every poor person 
committed to his care with humanity, and afford him the necessary 
attention and comforts of life suitable to his condition, and that 

(1) Form of Contract for Support of Poor Person. 

This contract, made and entered into this day of , 18 — , be- 
tween A. B., of , and the town of , in the county of , 

and State of Illinois, witnesseth: That the said A. B., in consideration 

of the agreements herein, on the part of said town of , does hereby 

contract and agree to take care of one O. P., a poor person of said town, 
for and during the period of [state the time] from the date hereof, and 
during said time to support and provide for said O. P. in a good and com- 
fortable manner, and to supply him with [state the particulars of the con- 
tract as agreed upon]. 

And the said town of agrees, on condition of faithful perform- 
ance of this contract by said A. B. on his part, as herein set forth, to pay 
to him [state agreement on the part of the town]. 

In witness whereof, said A. B, has hereunto set his hand and seal, and 
C. D., supervisor of said town, doth the like, on the part of said town, the 
day and year first above written. 

A. B., [seal.] 

C. D., [SEAL. J 

Supervisor. 

Form of Approval of Contract by Town Auditors. 

We, the town auditors of the town of , do hereby approve th« 

above [or within] contract by A. B. with said town of . 

Dated, this day of , 18—. 

[ To be signed by the Town Auditors], 



336 paupers. [r>rv. y 

he will fulfil his said agreement for the keeping of such poor 
according to the true intent and meaning thereof.(l) [K. S. 1845, 
p. 403, § 6. 

23. Temporary relief.] § 23. When any poor or indigent per- 
son does not require to be supported wholly by the county, the 
overseer of the poor may, subject to such limitations as may be 
prescribed by the county board, render him temporary relief with- 
out his being committed to the care of any such person, or being 
sent to the county poor house. 

24. Aid to non-resident poor— Burial.] § 24. When any non- 
resident, or any person not coming within the definition of a pau- 
per, of any county or town, shall fall sick, not having money or 
property to pay his board, nursing and medical aid, the overseers 
of the poor of the town or precinct in which he may be shall give 

(1) Form of Bond by Person Contracting to Take Care of Poor Person 

Know all men by these presents, that we, A. B. and C. D., of , are 

held and firmly bound unto the town of , in the county of , and 

State of Illinois, in the penal sum of dollars, which sum well and 

truly to be paid, we bind ourselves, our heirs, executors and administra- 
tors, jointly, severally and firmly by these presents. Sealed with our seals, 
this day of , 18—. 

The condition of the above obligation is such that, whereas, the above 
bounden A. B. has this day entered into written contract with the said 

town of , for the care and support of O. P., a poor person of said 

town, for and during the period of {state the time]. Now, if the said A. 
B. shall treat said poor person so committed to his care with humanity, 
and afford him the necessary attention and comforts of life suitable to his 
condition, and shall fulfill his said agreement for the keeping of such poor 
person, according to the true intent and meaning thereof, then this obli- 
gation to be void, otherwise to remain in full force and effect. 

A. B. [seal.] 

C. D. [SEAL.] 

The bond required to be given by the person contracting to support a pauper, 
fc designed to indemnify the county or town against further expense in supporting the pauper, 
imt.not to absolve it from the duty. If the person agreeing to support the pauper fails through ina- 
bility, or otherwise, to do so, the county or town must still afford the relief, and must look to the 
person with whom they contracted, and his securities, for indemnity for the loss. If the over- 
aeer fails to take a bond, and the person with whom he has contracted fails to support the pau- 
per, he 6hould then, if within his power, contract with some other person ; or failing in that, he 
should furnish such articles as are adapted to the necessities of the pauper, and hire a suitable 
person, on the best terms he can, to help him. If the overseer should act in bad faith, or is guilty 
of fraud, and the county thereby becomes the loser, he would, it seems, be liable for the loss- 
Supervisors of Clay County v. Plant, 42 111. R., 325. 

A contract with a county or town to properly ffe*d and clothe every pauper sent 
to the contractor upon the order of the proper authorities, for a vpecified sum, the contractor can 
recover no more than that sum from the county or town tor taking care of a lunatic pauper, aU 
though the trouble and expense was increased by reason of the insanity. The term pauper, 
under the statute, includes lunatic paupers. County of Macoupin y. Edwards, 15 111. R., 198. 

A person not authorized by law for that purpose, cannot furnish board to one who 
is on the list of paupers, and an inmate of the poor-house, and have a claim therefor upon the 
county, whether he knew the party to be a pauper or not; and the overseers of the poor have 
no pow«»r to bind the county to the payment of such claim. Board of Commissioner! of Knar 
County v. Jone*, 1 1nd. R., 3. 

Insane persons are not Intended to be Included in the pauper act. An insane per- 
ton having property adequate to his support, is not a pauper, and the county is r-ot ?iaMe for the 
support of such person, nor is the city in which he resides liable for his support OH? of Alton ▼ 
County of Madison, 21 111. R., 115. 



DIV. V.] SUPPOBT OF THE POOR. 337 

or cause to be given to him, such assistance as they may deem 
necessary and proper, or cause him to be conveyed to his home, 
subject to such rules and regulations as the county board may 
prescribe ; and if he shall die, cause him to be decently buried.(l) 
[K. S. 1845, p. 402, § 4 See L. 1872, p. 673. 

25. Report of overseers to county board.] § 25. In all counties 
in which the poor are not supported by the towns, the overseers 
of poor of each town or precinct shall, at each regular session of 
the county board, and at such other times as the county board 
may require, make a full report of all their actings and doings, and 
return a list of all the poor in their respective towns or precincts, 
specifying the age, sex, condition and infirmities of each. [R. S. 
1845, p. 403, § 7. 

26. Appropriations.] § 26. Upon such report being made, it 
shall be the duty of the county board to make the proper appro- 
priations from the county treasury for the payment of the neces- 
sary expenses of such relief and support of the poor. [E. S. 1845, 
p. 403, § 8. 

27. Report of overseers to town auditors.] § 27. When the 
poor are supported by towns, the overseers of the poor shall make 
such report to the board of town auditors at their regular meeting, 
who shall audit all accounts and order the payment of such ex- 
penses from the town treasury. 

28. Powers of county board.] § 28. The county board of any 
county in this state in which the poor are not supported by the 
towns thereof, as provided by law, shall have power — 

1. To acquire, in the name of the county, by purchase, grant, 
gift or devise, a suitable tract or tracts of land upon which to erect 
and maintain a county poor house, and other necessary buildings 
in connection therewith, and for the establishment and mainte- 
nan ce of a farm for the employment of the poor, and to erect and 
maintain such buildings and establish and maintain such farm; 
but they shall not expend for the purchase of any such land or the 
erection of any such buildings a sum exceeding $3,000, without a 
two-thirds majority vote of all the members of the county board. 

2. To receive, in the name of the county, gifts, devises and be- 
quests to aid in the erection or maintenance of a poor house, or in 
the care and support of poor and indigent persons. 

(1) Counties are liable for a reasonable compensation, 'under the pauper act, to 
«ne who renders medical aid to persons falling sick within the county, and having no means to 
pay for the same. The decision of the hoard of supervisors as to what is a proper allowance, is 
not conclusive ; and if a proper amount is not allowed, an action may be maintained therefor, 
In such cases, persons falling sick with a contagious disease are not paupers within the meaning 
of the statute, and in an action to recover for medical aid so furnished to them, the liability of 
the county is not affected bv the fact that a "poor-house" had been provided in the county for 
the reception of paupers. Such an establishment is not designed to receive persons affected with 
contagions disease, but only those who are technically paupers. Supervisor* oj LaSalU » Rnf 
noldt, 4S> I1L R., 186. 

99, 



338 PAUPERS. [div. t. 

3. To make all proper rules and regulations for the management 
of the county poor house and poor farm, and of the inmates of the 
poor house. 

4. To appoint a keeper of the poor house and all necessary 
agents and servants for the management and control of the poor 
house and farm, and prescribe their compensation and duties. 

5. To appoint a county physician and prescribe his compensa- 
tion and duties. 

6. To appoint an agent to have the general supervision and 
charge of all matters in relation to the care and support of the 
poor and prescribe his compensation and duties. 

7. To make all proper and necessary appropriations out of the 
county treasury for the purchase of land and the erection of build- 
ings, as authorized by this act, and to defray the expenses neces- 
sary in the care and maintenance of the same, and for the support 
of the poor, and to cause an amount sufficient for said purposes to 
be levied upon the taxable property of the county, and collected 
as other taxes. 

8. Upon a two-thirds majority of all the members of the board, 
to sell and dispose of the whole or any part of the poor farm of the 
county in such manner and upon such terms as they may deem most 
for the interests of the county, and to make and execute all neces- 
sary conveyances thereof, in the same manner as other convey- 
ances of real estate may be made by a county. [R. S. 1845, p. 
404, § 17, 18, 19, 20, 23; L. 1861, p. 180, § 1 ; L. 1855, p. 132, § 1. 

29. Account by overseer.] § 29. The overseers of the poor in 
each town in counties under township organization, (whether the 
poor are supported by townships or otherwise,) and of each pre- 
cinct in counties not under townsship organization, shall keep an 
accurate account, showing the name of every person relieved or 
supported in their town or precinct ; the place of his birth ; the 
manner in which he is relieved or supported, whether in whole or 
in part at the expense of the county or town ; the amount of the 
aid furnished ; whether the dependency was on account of idiocy, 
lunacy, intemperance, or other cause, stating the cause. And on 
or before the first meeting of the county board of September in 
each year, file a copy of such account with the county clerk of 
their county. 

30. Account by county agent] § 30. When the county agent 
shall furnish relief to any of the poor of the county, he shall keep 
a like account, and at the same time in each year file a copy of 
the same with the county clerk of his county. 

31. Account by keeper of poor house.] § 31. The keeper of 

the poor house shall also keep an account, showing the name of 
each person admitted to the county poor house ; the time of his 



DIY. T.] SUPPORT OP THE POOR. 339 

admission and discharge ; the place of his birth ; whether his de- 
pendence resulted from idiocy, lunacy, intemperance, or other 
cause, stating the cause ; and shall, at the same time, in each year, 
file with the county clerk of his county a copy of the same, to- 

f ether with a statement showing the average number of persona 
ept in the poor house each month during the year. 

32. Neglect to report] § 32. If any overseer of the poor, 
county agent, or keeper of the poor house, shall fail or neglect to 
make such a report at the time required by this act, he shall, for 
each offense, forfeit the sum of $25, to be recovered in the name of 
the county, in any court of competent jurisdiction. 

33. Poor to be kept at poor house.] § 33. When any county 
shall have provided a suitable poor house for the accommodation 
of the poor of the county, and the same is ready for the reception 
and care of the poor, all poor persons requiring the care and support 
of the county shall be cared for and supported at such poor house, 
and not in the several towns and precincts in the county, except 
when they cannot be received in the poor house, and except as 
herein otherwise provided. [K. S. 1845, p. 404, § 21. 

34. Curative.] § 34. In all cases where counties have voted 
for the support of the paupers of such counties by townships, and 
the said counties have acted in good faith for the term of five years 
under the authority of said vote, in the support of paupers by 
townships, the acts of said counties and the townships thereof 
shall be deemed legal and binding, notwithstanding any informality 
in the time or manner of holding the said elections, or in record- 
ing or preserving the records of the same. [L. 1871-2, p. 596, § 1. 

35. Township support— How abandoned.] § 35. Upon the pe- 
tition of not less than twenty legal voters residing in each one of 
a majority of the towns in any county which shall have adopted 
the mode of supporting paupers by townships, the county board 
shall cause to be submitted to the voters of the county, at the next 
general election for town officers, the question of the continuance 
of that mode of supporting the poor. The ballots shall be : " For 
township support of paupers," or "Against township support of 
paupers," and notices of the election shall be given, and the votes 
canvassed and returns made the same as for county officers. If it* 
shall appear by the returns of said election that a majority of the 
votes cast on that question at said election are against township 
support of paupers, then that mode of supporting the poor shall 
cease, and thereafter the poor shall be supported in the same man- 
ner as provided by law in counties not having adopted the support 
of the poor by townships ; otherwise the poor of such county shall 
be supported by townships as heretofore provided. Said question 
shall not be submitted oftener than once in five years. 



340 PAUPEKS. [DIV. V. 

RESIDENCE FOR PURPOSE OF VOTING. 

[ACT approred May 25, 1877.J 
Section. 

1. Paupers— Residence — Voting. 

1. Paupers— Residence— Voting.] §1. No pauper or inmate 
of any county poor-house, insane asylum or hospital in this 
State, shall by virtue of his abode at such county poor-house, 
insane asylum or hospital be deemed a resident or legal voter in 
the town, city, village or election district or precinct in which 
such poor-house, insane asylum or hospital may be situated ; but 
every such person shall be deemed a resident of the town, city, 
village or election district or precinct in which he resided next 
prior to becoming an inmate of such county poor-house, insane 
asylum or hospital. (1) 

SEPARATE SUPPORT — POOR HOUSE. 

[ACT approved May 23, 1877.1 
Section. 

1. Separate support of paupers. 

2. Rate per day. 
8. Each town. 

4. When town fails to support. 

5. Reports. 

1. Separate support of paupers.] § 1. The county board of 
any county that has heretofore adopted, or may hereafter adopt 
the separate support of paupers may, whenever it shall see fit so 
to do, establish and maintain a county poor house, and for this 
purpose shall have all the power given to county boards by sec- 
tion twenty-eight (28) of an act entitled "An Act to revise the 
Law in relation to Paupers," of the Eevised Statutes of 1874. 

2. Rate per day.] § 2. The county board of any such county, 
whenever any such poor house is established, may fix the rate 
per day or per week, that each town shall pay for the support 
and maintenance in such poor house for each of their respective 
paupers, which shall be paid to the county agent in charge of * 
the poor house, or otherwise, as provided by the county board. 

3. Each town.] § 3. Each town of such counties may then 
have its paupers supported in such poor house, by paying said 
rate, or may provide ior them otherwise, as it shall deem best 

4. When town fails to support.] § 4 The county agent in 
charge of said poor house shall not receive any paupers except 

(1) A person does not forfeit his residence in a town or precinct In which he was 
a voter merely by becoming a county charge and an inmate of the poor-house. DaU r. Irwim. 
h I1L R., na 



OIT. V.] TUITION OF PAUPER CHILDREN. 3JJ 

upon the order of the overseer of the poor of the town to which 
paupers belong, and should any town fail to pay for the support 
of its paupers, the county agent may be authorized by the county 
board to return such paupers to the town to which he or she may 
belong, or the county may sue for and recover the amount due 
for taking care of such paupers. 

5. Reports.] § 5. The county agent shall, as often as required 
by the county board, make full and complete reports, under oath, 
of all moneys received and expended by him, as such county 
agent, and shall furnish such other information in relation to the 
poor house and farm as may be required of him. 

TUITION OP PAUPER CHILDREN. 
[ACT approved May 24, 1877.] 

8KCTION. 

1. Tuition of pauper children. 

2. To whom paid. 

1. Tuition of pauper children.] § 1. County Boards shall or- 
der to be paid out of the county treasury a just and equitable 
sum of money for the tuition of pauper children residing in the 
county poor nouse, and attending any district school in this 
State. 

2. To whom paid.] § 2. Said money shall be paid to the 
Township Treasurer of the Township in which said district is 
situated, and said Treasurer shall place said money to the credit 
of the district where said pauper children attend school. 

Note. — A county cannot relieve itself from liability to support paupers, by refusing or neglecting 
tomake any rules and regulations on the subject. County of Perry v. DuQuom, 99111. R., 479. Where 
the county board have employed a county physician, another physician rendering medical servi- 
ces to a poor person, though by order of the overseer of the poor, cannot recover therefor of the 
county. County of DeWitt v. Wright, 91 Ul. R., 529. 

The legislature can impose the support of paupers upon towns, and it is not necessary that th is 
question be submitted to a vote of the people in the county. Town of Fox v. Town of Kendall, 97 
111. R., 72; County of Perry v. DuQuoin, 99 111. R., 479. To make a person a charge upon a town aa 
a pauper, it is necessary that he should have resided in such town within six months before 
becoming a pauper. Town of Fox v. Town of Kendall, 97 111. R., 72. Persons afflicted with a 
contagious disease, who cannot be sent to the poor house, but require medical assistance and care, 
come within the class mentioned in Section 24 as residents not coming within the definition of 
paupers, and a county is liable for their care. The section of the law relating to paupers, which 
provides for giving assistance to persons falling sick, not having money to pay for board, medical 
aid, etc, refers to two classes, non-residents, and residents not coming within the definition of 
paupers. That part authorizing the sending of such persons to their homes, applies only to non- 
residents of the county. County of Perry v. DuQuoin, 99 Ul. R., 479. 

To hold a town liable for the support of a pauper who had resided there within six months 
before becoming a pauper in another town, notice of the fact, to the town sought to be charged, 
should be given within a reasonable time. Town of Fox v. Town of Kendall, 97 111. R., 72. The over- 
seer of the poor of a town cannot render temporary relief to a poor person not required to b« 
wholly supported by the county, contrary to the regulations of the county board. County qf IM 
Witt v. Wright, 91 III. R.. 529. 



DIY. VI. 1 FORMING INSURANCE COMPANIES. 343 

DIVISION VI. 

TOWNSHIP INSURANCE COMPANIES. 

42* ACT to revise the law in relation to township insurance companies. [Approved March Si. 
1874. In force July 1, 1874. Rev. Stat. oh. 73.J 

Section. 

1. Who may form. 

2. How formed. 

3. Directors — election of. 

4. President— Secretary— Treasurer. 

5. Bonds of secretary and treasurer. 

6. Corporate powers. 

7. Members. 

8. Manner of insuring. 

9. Risks classified. 

10. Where company not to insure. 

11. Notice of loss— Adjustment— Expense. 

12. Assessments. 

13. Notice of assessment to members. 

14. Suits. 

15. Annual statement. 

16. Withdrawal of member. 

17. Report to auditor — Certi fi oato — Fees. 

18. Dissolution. 

19. Companies formed under act of 1872. 

1. Who may form.] § 1. Any number of persons, not less 
than twenty-five, residing in any congressional or political town- 
ship, or in one or more adjoining congressional or political town- 
ships in this state, not exceeding twelve in number, and without re- 
gard to county lines, who collectively shall own property of not 
less than $50,000 in value, which they desire to have insured, may 
form an incorporated company for the purpose of mutual insurance 
against loss or damage by fire or lightning. 

2. How formed.] § 2. Such persons shall file with the auditor 
of public accounts a declaration of their intention to form a com- 
pany for the purposes expressed in the preceding section, which 
declaration shall be signed by all the corporators and shall con- 
tain a copy of the charter proposed to be adopted by them. Such 
charter shall set forth the name of the corporation, which shall 
embrace the name of the township in which the business office of 
such company is to be located and the intended duration of the 
company, and if it is found conformable to this act and not incon- 
sistent with the laws and constitution of this State, the auditor 
shall thereupon deliver to such persons a certified copy of the 
charter, which, on being filed in the office of the county clerk of the 
county where the office of such company is to be located, shall be 
their authoritv to organize and commence business. Such certified 



344 TOWNSHIP INSURANCE COMPANIES. [DIV. VL 

copy of the charter may be used in evidence for or against said com- 
pany, with the same effect as the original : Provided, that such 
charter so obtained shall be subject to control and modification by 
the general assembly.(l) 

3. Directors and their election.] § 3. The number of directors shall not 
be less than nine nor more than fifteen, a majority of whom shall constitute a 
quorum to do business, to be elected from the corporators by ballot, of whom 
one-third shall be elected for one year, one-third for two years and one-third 
for three years, and until their successors are elected and qualified. At all 
subsequent elections, except to fill vacancies, one-third of said board of 
directors shall be elected for three years, said election to be held at the 
annual meeting of the company, which shall be on the first Tuesday after the 

(1) Form of Declaration of Intention to form, Company. 

We, the undersigned, residing in the political township of [insert name 
of township as known for township organization. If it is merely a congress- 
ional township and not under township organization, then say, Congress- 
ional township No. , giving the number thereof according to the de- 
scription of the U. S. government], in the county of and State of 

Illinois, [or of the political or congressional township of , describing 

them as above, being adjoining townships in the State of Illinois, not ex- 
ceeding six in number, or as the case may be], who collectively own 
property of not less than fifty thousand dollars in value, which we desire 
to have insured, hereby declare our intention to form an incorporated 
company for the purpose of mutual insurance against loss or damage by 
fire or lightning, according to the statute in such case made and provided. 
The following is a copy of the charter proposed to be adopted by us for the 
purpose aforesaid : 

[Here insert copy of charter.] 

In testimony whereof we have hereunto subscribed our names, this 

day of , A. D. 18—. [Signed by all the corporators.] 

The form of charter contemplated by this act will be drawn to suit the wishes of the cor- 
poratorsin each case. The ollowing is given as a general form of charter, which may Ije varied 
Co suit circumstances, and which is designed to be inserted in the foregoing form of declaration 
at the place therein indicated. 

Form of Charter for Township Mutual Insurance Companies, 
We, E. B., A. T. and H. P. [giving the names of all the corporators], re- 
siding in the township of [insert as in the form of declaration of 

intention to organize], in the county of , and State of Illinois, do 

propose the following as the charter adopted by us, for the purpose of a 
mutual insurance company, pursuant to the statute in such cases made 
and provided. 

1. The name of said company shall be The Township Mutual In- 
surance Company, and its business office shall be at , in said town- 
ship of , in the county of , and State of Illinois. 

2. The intended duration of said company shall be years. 

3. The object of said company shall be to engage in and carry on the 
business of a mutual insurance against loss or damage by fire or lightning 
within the limits of the township [or townships] above named. 

4. Said company shall have and possess all the powers and authority 
prescribed by an act of the General Assembly of the State of Illinois, in 
relation to township insurance companies. 

In witness whereof we have hereunto set our hands, this day o* 

i A- JD« 18 . [Signed by all the corporators.] 



A VI.] MANAGEMENT. 345 

fiivi Monday in January in each year. Provided, that any company now incor- 
porated and doing business under this act may at any time so change their 
mode of electing their board of directors at an annual meeting as to be in 
conformity with this act. In the election of the first board of directors each 
corporator shall be entitled to one vote. At every subsequent election every 
person insured shall be entitled to as many votes as there are directors to bo 
elected and an equal additional number for each $500 that he may be insured 
in the company and may cast the same in person or by proxy, distributing 
them among the same or a less number of directors to be elected, or cumnlat- 
ing them upen one candidate, as he may think ht. [As amended June 10, 
L887J 

&. President, treasurer and secretary.] § 4. The directors 
shall elect from their number a president and a treasurer, and 
shall ^lso elect a secretary, who may or may not be a member of 
the o jmpany, all of whom shall hold their office for one year, and 
until their successors are elected and qualified. 

5. JSouds.] § 5. The treasurer and secretary shall each give 
bonds to the company for the faithful performance of their duties, 
in such amounts as shall be prescribed by the board of directors. 

6. Corporate powers.] § 6. Such corporation and its direct- 
ors shall possess the usual powers and be subject to the usual 
duties of corporations and directors thereof, and may make such 
by-laws, not inconsistent with the constitution or laws of this 
state, as may be deemed necessary for the management of its 
affairs, in accordance with the provisions of this act; also to pre- 
scribe the duties of its officers and fix their compensation, and to 
alter and amend its by-laws when necessary. 

7. Members.] § 7. Any person owning property in the dis- 
trict for which any such company is formed, may become a 
member of such company by insuring therein, and shall be en- 
titled to all the rights and privileges appertaining thereto; but a 
person not residing within the district for which the company is 
formed shall not become a director of such company. [As 
amended by act approved June 18, 1883.] 

8. Manner of insuring:.] § 8. Such companies may issue 
policies only on detached dwellings, barns, (except livery, boarding and 
hotel barns) and other farm buildings, school houses and churches, and 
such property as may be properly contained therein, also other prop- 
erty on the premises and owned oy the insured, also live stock, hay and 
grain in the stack on the premises of the insured and anywhere in the 
territory of the company, for any time not exceeding five years, and 
not to extend beyond the limited duration of the charter, and for an 
amount not to exceed 84,500 on any one risk. All persons so insured 
-hall give their obligations to the company, binding themselves, their 
heirs and assigns, to pay their pro rata share to the company of the 



346 TOWNSHIP INSURANCE COMPANIES. [DIV. VL 

necessary expenses and of all losses by fire or lightning which may be 
sustained by any member thereof, during the time for which their 
respective policies are written; and they shall, also, at the time of 
effecting the insurance, pay such percentage in cash, and such other 
charge as may be required by the rules or by-laws of the company. 

9. Risks classified.] § 9. Any such company may classify the 
property insured therein at the time of issuing policies thereon, 
under different rates, corresponding as nearly as may be to the 
greater or less risk from fire or lightning, and loss, which may at- 
tach to each several building insured. 

10. When company not to insure.] § 10. No such company 
shall insure any property beyond the limits of the district com- 
prised in the formation of the company, nor shall they insure any 
property within the limits of any city containing over 12,000 in- 
habitants at the time of the organization of such company. 

11. Notice of loss— Adjustment— Expense.] § 11. Every mem- 
ber of such company who may sustain loss or damage by fire or 
lightning shall immediately notify the president of such company, 
or in his absence the secretary thereof, stating the amount of dam- 
age or loss claimed, and if not more than two hundred dollars, tl:e 
president and secretary shall proceed to ascertain the amount of 
such loss or damage and adjust the same. If the claim for damage 
or loss shall be an amount greater than two hundred dollars, the 
president of such company, or in case of his absence the secretary 
thereof, shall forthwith convene the directors of such company, 
whose duty it shall be when convened to appoint not less than three 
disinterested members of such company to ascertain the amount of such 
damage or loss. If in either case there is a failure of the parties to 
agree upon the amount of such damage or loss, the claimant may ap- 
peal to the judge of the county court of the county in which the office 
of such company is located, whose duty it shall be to appoint three 
persons as a committee of reference, who shall have full authority to 
examine witnesses and to determine all matters in dispute and shall 
make their award in writing to the president of such company, and such 
award shall be final. The pay of said committee shall be two dollars 
($2.00) per day for each day's service so rendered, and four cents for 
each mile necessarily traversed in the discharge of their duties, which 
shall be paid by the claimant, unless the award of said committee shall 
exceed the sum offered by the company in liquidation of such loss or 
damage, in which case said expenses shall be paid by the company. 
[As amended 1877. 

12. Assessments.] § 12. Whenever the amount of any loss 
shall have been ascertained, which exceeds in amount the cash 
funds of the company, the president shall convene the directors of 



DIY. tl] management. 347 

said company, who shall make an assessment upon all the property 
to the amount for which each several piece of property is insured, 
taken in connection with the rate of premium under which it may 
be classified. 

13. Notice of assessment.] § 13. It shall be the duty of the 
president, whenever such assessment shall have been made, to im- 
mediately notify every person composing such company, person- 
ally, by an agent or by letter sent to his usual post office address,. 
of the amount of such loss, and the sum due from him as his share 
thereof, and of the time when and to whom such payment is to be 
made ; but such time shall not be less than thirty nor more than 
ninety days from the date of such notice. 

14. Suits.] § 14. Suits at law may be brought against any 
member of such company who shall neglect or refuse to pay any 
assessment made upon him by the provisions of this act ; and the 
directors of any company so formed, who shall willfully refuse or 
neglect to perform the duties imposed upon them by the provis- 
ions of this act, shall be liable, in their individual capacity, to the 
person sustaining such loss. Suits at law may also be brought and 
maintained against any such company, by members thereof, for 
losses sustained, if payment is withheld after such losses have be- 
come due. 

15. Annual statement.] § 15. It shall be the duty of the sec- 
retary to prepare an annual statement, showing the condition of 
such company on the thirty-first day of December, and present the 
same at the annual meeting. 

16. Withdrawal from company.] § 16. Any member of such 
company may withdraw therefrom by surrendering his policy for 
cancellation, at any time while the company continues the business 
for which it was organized, by giving notice in writing to the Sec- 
retary thereof, and paying his share of all claims then existing against 
said company : Provided, that by the withdrawal of any such member, 
the number of the members remaining in the company shall not 
be reduced below the original number of corporators, or that the 
assets will not be reduced below the amount at the time of the or- 
ganization : Provided further, that the company shall have power 
to cancel or terminate any policy by giving the insured notice to 
that effect. 

17. Report to auditor— Certificate— Fees.] § 17. It shall be 
the duty of the president and secretary of every such company on the 
first day of January of each year, or within one month thereafter, 
to prepare, under their own oath, and transmit to the auditor of 
public accounts, a statement of the condition of the company on 
the thirty-first day of December then next preceding, in such form 
as the auditor may direct If, upon examination, he is of the 



348 TOWNSHIP INSURANCE COMPANIES. [DIV. VL 

opinion that such company is doing business correctly, in accord- 
ance with the provisions of this act, he shall thereupon furnish the 
company his certificate, which shall be deemed authority to con- 
tinue business the ensuing year, subject, however, to subsequent 
provisions of this act. For such examination and certificate the 
company shall pay $1. Each company shall pay, at the time of 
organization, $10 for the auditor's services, all of which shall be 
paid into the state treasury and applied to the insurance fund.(l.) 

18. Dissolution — amended charter.] § 18. Whenever any town- 
ship insurance company, incorporated under the laws of this state shall 
at any time within five years previous to the termination of its charter, 
decide, by a majority of two-thirds of its directors to extend the period 
of its corporate existence, or to otherwise amend its charter, the presi- 
dent and secretary of such company shall cause to be filed with the 
auditor of public accounts a statement under the seal of said company, 
and by them duly attested, stating the fact of the decision of such com- 
pany to so extend the period of its corporate existence, or to amend its 
charter or both, stating particularly the time of such extension and the 
nature of such amendments, and if it is found conformable to the pro- 
visions of this act, and not inconsistent with the laws and constitution 
of this state, the auditor shall issue an amended charter, in accordance 
with the vote of the directors of such company, and deliver a certified 
copy thereof to the said company, and upon the same being filed in the 
ofiice of the clerk of the county in which the principal ofiice of such 
company is located by such company, the period of its corporate exist- 
ence shall be so extended, and it shall be authorized to transact any and 
all business contemplated by such amendments: Provided, however, 
that such company and its charter, when so amended shall at all times 
be subject to control and modification by the general assembly, and to 
all laws of this state applicable thereto; and all companies organized 
under this act may be proceeded against and dissolved in the same 
manner and upon the same conditions as provided in case of other 
insurance companies incorporated under the laws of this state. [As 
amended June 4, 18^9.] 

19. Companies formed under act of 1872.] § 16. Any town- 
ship insurance company formed under an act entitled "An act to 
incorporate and govern mutual fire insurance companies in town- 
ships," approved April 3, 1873, with the written consent of two- 
thirds of the members, accept the provision of this act, and there- 
upon shall be governed by its provision. Before any such com- 
pany shall be entitled to the benefits thereof, the directors, or a 
majority of them, shall file with the auditor of public accounts the 
declaration provided for in section 2 of this act. 

(l)Tlie auditor could in a proper case terminate the power of the company under 
the above section, to continue business, by simply refusing to grant the certificau; of renewal. 
Opinion of Att'y Gen. £lksa.l.l, 



DIV. VI.] TOWNSHIP INSURANCE COMPANIES. 349' 

ADMISSION OF TEKRITORT. 

AN ACT to give Contiguous Territory the right to become incorporated with Township Insurance 
Companies. Approved May 81, 1881. In force July 1, 1881. 

20. Organization.] § 1. That it shall be lawful for any town- 
ship insurance company, already organized or hereafter to be organized, 
having less than twelve political townships in its organization, to 
accept or receive into its said organization one or more adjoining 
congressional or political townships: Provided, however, that such 
organization shall not in any event, embrace more than twelve such 
townships. [As amended June 16, 1891. 

21. Contiguous territory.] § 2. Any number of persons, not 
less than ten, who, collectively, shall own property of not less than 
$15,000 in value, which they desire to have insured, residing in any 
congressional or political township, which shall not already be in some 
township insurance company, may petition any township insurance 
company, already organized (to which said township may be contigu- 
ous) praying to have said township added to and embraced in said 
township insurance company. Said petition shall be accompanied by the 
written consent of a full majority of the then policy holders in said 
company, owning not less then two-thirds of the insurance represented 
by the policies of said company, consenting to the prayer of said peti- 
tion. Upon the receipt of such petition, accompanied by such consent, 
the board of directors of said company may, by vote, accept and receive 
into said organization such township so petitioning. If such township 
so petitioning shall be so received and accepted by such township 
insurance organization, the secretary of such township insurance com- 
pany shall at once so notify the auditor of public accounts, stating the 
name of the township so added and the date the acceptance was so 
made. 

22. Keceiving other township.] § 3. The accepting or receiv- 
ing of any such township* as aforesaid, shall in no way impair the 
obligations of said township insurance company, or that of the policy 
holders or members thereof. 

23. Township received.] § 4 From and after the date of 
such acceptance by such township insurance company, said township 
so received shall, to all intents and purposes, be a part and parcel of 
such township insurance company, the same as though embraced therein 
in its original organization. 

CONSOLIDATION OF COMPANIES. 

AN ACT to Authorize the consolidation of township insurance companies. Approved June 21, 1895. 

24. Consolidation.] Be it enacted, etc. § 1. That it shall he lawful for any number of town- 
ship mutual fire insurance companies, already organized, or hereafter to be organized — not exceeding 
twelve political townships of contiguous territory— to consolidate the same into one company. 

25. Procedure.] §2. Such consolidation may be made by petition of the policy holders of the 
several companies, representing a majority of the amount of insurance carried by each company, to 
the board of directors of the several companies respectively. 

26. How effected.] §3. On receipt of such petition, the botrd of directors of the several com- 
panies shall meet, and by a majority vote of the board of directors of each of the several companies, 
consolidate the several companies into one, assuming the name of either of the companies so consoli- 
dated, which company so named, under its existing charter, shall assume all the outstanding and un- 
expired policies of (he several companies, agreeable to the laws and regulations in force for the 
organization of township Insurance companies, and subject to the constitution and bylaws of such, 
company made In pursuance thereof. 



$50 REVENUE. [dIV VTI 



DIVISION VII. 

REVENUE. 

AN ACT for the assessment of property and foi the levy and collection of taxes [Approved 
March 30, 1872. In force July 1, 1872. Rev. Stat., Ch. 120.] 

PROPERTY LIABLE TO TAXATION. 

1. Taxable property.] § 1. That the property named in this 
section shall be assessed and taxed, except so much thereof as may 
be, in this act, exempted :(1) 

First — All real and personal property in this state. 

Second — All moneys, credits, bonds or stocks and other invest- 
ments, the shares of stock of incorporated companies and associa- 
tions, and all other personal property, including property in tran- 
situ to or from this state, used, held, owned or controlled by persons 
residing in this state. 

(1) The constitution of Illinois declares, Art. 9, Sec. 1. The General Assembly shall pro- 
vide such revenue as may be needful, by levying a tax, by valuation, so that every person and 
corporation shall pay a tax in proportion to the value of his, her or its property — such value to 
be ascertained by some person or persons, to be elected or appointed in such manner as the 
General Assembly shall direct, and not otherwise ; but the General Assembly shall have power 
to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, 
Jugglers, inn-keepers, grocery-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph 
and express interests or business, venders of patents, and persons or corporations owning or 
using franchises and privileges, in such manner as it shall, from time to time, direct by general 
law, uniform as to the class upon which it operates. 

Sec 2. The specification of the objects and subjects of taxation shall not deprive the General 
Assembly of the power to require other subjects or objects to be taxed, in such manner as may 
be consistent with the principles of taxation fixed in this constitution. 

The rule of uniformity and equality of taxation prescribed by the constitution 
must be applied not only to the rule of taxation, and to the district taxed, but also to all the 
property subject to taxation. Primm v. City of Belleville, 59 111. R., 142 ; Lee v. Ruggles, 62 111. R„ 
427 : Chicago & A. R. R. Co. v. Livingston, 68 111. R„ 458. 

For the purpose of taxatle:-., the law regards lands and improvements as a whole, 
except for obtaining a correct valuation. When the valuation is ascertained, and tax charged, 
it is against the tract or lot, including improvements. If sold for the tax, all is sold together. 
Arrangements between lessor and lessee are not to be considered by the revenue officers. Opinion 
Auditor Miner, April 30, 1867. But where a building is set on posts to denote its temporary con- 
dition, under a provision in the lease to remove it, it is held to be personal property. Ballou ▼. 
Jones et al., 37 111. R., 94; see also Titus et al. v. Mabee et al., 25 111. R., 257. 

"While the transient visit of a person for a time at a place may not make him a 
resident while there, yet, if he has a regular and permanent business there, such as the loaning 
of money for himself and others, and remains there continuously for a time sufficiently extended 
to enable him to transact that business, which is his only known business or occupation, that will 
be regarded as his place of residence, so as to subject his own moneys and credits, employed in 
such business, and also the moneys and credits of other persons who may reside out of this State, 
but which are used and controlled by him as their agent, to taxation at such place, if in this 
State ; and this although he may at the same time have a home or domicile in another State, 
where he also resides during certain limited portions of the year. Tazewell Co. t. Davenport, 40 
111. R., 197. 

An assessment, commonly called special assessment for street improvement in a 
city is not a tax, and the same rules applicable to one do not necessarily apply to the others. 
City of Chicago v. Colby, 20 111. R., 614; Canal Trustees v. Ciiy of Chicago, 12 111. R., 406. 

In the construction of statutes, it will never he presumed that the legislature 
Intended to abandon its rights as to the mode of assessing and collecting the State revenue. Bank 
qfthe Rej)ublic v. Hamilton County, 27 111. R., 54. 

The Jurisdiction of the State, on the subject of taxation for State purposes, is su- 

?reme, over which the government of the United States can have no power or control. StaU 
Yeasurerv. Collector of Sangamon County, 28 111. R., 512; The People v. Bradley et al, 39 I1L R., 
130. But the federal constitution limits the power of taxation by a State in express terms as to 
imports and exports, and by implication, as to those instruments employed by the general gov- 
ernment to carry out its authority, as government bonds, and the operation of such instruments. 
live People v. Bradley et al, 39 111. R.. 130. 



OIV. VH.] PROPERTY EXEMPT FROM TAXATION. 351 

Third — The shares of capital stock of banks and banking 
companies doing business in this state. 

Fourth — The capital stock of companies and associations incor- 
porated under the laws of this state. [See Const., Art. 9, § 1. 

PROPERTY EXEMPT FROM TAXATION. 

Section. 

2. Exempt property. 

2. Exempt property.] § 2. All property described in this sec- 
tion, to the extent herein limited, shall be exempt from taxation, 
that is to say(l) — 

First — All lands donated by the United States for school pur- 
poses, not sold or leased. All public school houses. All prop- 
erty of institutions of learning, including the real estate on which 

A law of a State Including steamboats as a portion of the property of an individual 
subject to state taxation, is valid. It does not interfere with the power of Congress to regulate 
commerce, nor is it a tonnage duty. Perry v. Torrence, 8 Ohio R., 521. 

A sum of money, certain to be received annually and at stated periods, is within the 
meaning of the tax law, an annuity, unless the same be receivable as a pension, a salary, or aa 
compensation for labor of services subsequently to be performed. Wetmore v. State, 18 Ohio R.,77. 

Tlie term "investment in stocks," embraces within its meaning shares in the 
capital stock of banks and banking associations, and includes as well shares in the capital stock 
of national banks. The People v. Bradley et al., 39 HI. R., 131. 

(1) Under the constitutional provision requiring all taxes to be imposed equally 
upon the property of persons and corporations, exemptions from such burdens are to be con- 
strued strictly and not extended by judicial construction to embrace other property than is 
plainly expressed in the law. People ex rel. v. Seaman's Friends' Society, 87 111. R., 246. 

Laws exempting property from taxation, being in derogation of equal rights should 
be construed strictly; therefore, held, that property mentioned as exempt, is only exempt from 
taxation when used exclusively for the purposes mentioned. If used for other purposes, it is li- 
able to taxation, no matter what purposes the proceeds are in future to be applied. Cincinnati 
College v. SlaU, 19 Ohio R., 110. 

"When an exception as to the burden of taxation is made in favor of a corporation, 
Justice demands that it should show clearly a compliance with the terms and spirit of the act 
exempting it from taxation before it can be permitted to escape a duty incumbent equally upon 
every citizen. People ex rel. v. Graceland Cemetery Co., 86 111. R., 336. 

"Whilst courts of equity will in many cases enjoin the collection of a tax sought 
to be enforced against property exempt from taxation, they will not enjoin the collection of the 
whole tax, because in determining the valuation of an aggregate property, exempt property may 
have been included as a factor. Huck et al. v. Chicago & Alton R. R. Co., 86 111. R., 352. 

United States government bonds and notes are exempt from taxation under state 
authority. Bank v. Supervisort, 7 Wallace R., 26. But the income derived therefrom, if it is in 
money or other taxable property, is subject to taxation. Opinion Att'y Gen. Edsall, June 12, 1873. 

Horses and carriages carrying the mail of the United States, if owned by the govern" 
ment, are exempt from taxation, but not bo if owned by individuals. Opinion Auditor Miner, 
June 27, 1867. 

Corn, wneat, oats and other field products, and beef, pork and other articles of provisions, are 
not exempt from taxation. Opinion Auditor Miner, Jan. 7, 1867. 

It is within the constitutional power ol the legislature to exempt property from 
taxation, or to commute the general rate for a fixed sum. Illinois Central Railroad Co. v. County 
of McLean, 17 HI. R., 293. But not so in regard to persons or class of persons. Hunsacker et aL v. 
Wright et al., 30 HI. R., 146; a Kane v. Treat et al., 25 111. R., 561. 

The assessment of public taxes, or special assessment for public improvements upon the 
public property of the State, county or municipal corporations, is a mere question of policy. The 
power exists to make it bear its share of the one or the other. It may be exempt from the ODe 
and subjected to the other. Canal Trustees v. City of Chicago, 12 111. R„ 405; Ross v. Mayor of New 
York, 3 Wend. R., 335; cited and sustained in case of Higgins v. City of Chicago, 18 111. R., 280. 

When an officer assesses and values property exempt from taxation, he acts without 
authority, and all his acts in excess of hia power are void. Republic Life Ins. Co. v. Pollak et al~, 
75 I1L R., 295 



352 REVENUE. [DIV. VEL 

the institutions are located, not leased by such institutions or 
otherwise used with a view to profit. (1) 

Second — All church property actually and exclusively used for 
public worship, when the land (to be of reasonable size for the 
location of the church building) is owned by the congregation.(2) 

Third — All lands used exclusively as grave yards or grounds 
for burying the dead. 

Fourth — All unentered government lands ; all public buildings 
or structures of whatsoever kind, and the contents thereof, and 
the land on which the same are located, belonging to the United 
States. 

Fifth — All property of every kind belonging to the state of 
Illinois.(3) " 

Sixth — All property belonging to any county, town, village or 
city, used exclusively for the maintenance of the poor. All 

(1) Concerning exemption of school property the constitution of 1848, empow- 
ered the General Assembly to exempt from taxation such property aa they might deem neces- 
sary " for school purposes." In this .respect it differs from the present constitution, which limits 
such right of exemption to lands " used exclusively for school purposes." 

Under the provisions of the constitution of 1848, the legislature granted acharter to the North- 
western University, and provided in the charter that all property belonging to or owned by the 
corporation should be exempt from taxation. Held, that this charter was a contract which could 
not be impaired by subsequent legislation, had under the constitution of 1870, limiting the ex- 
emption from taxation to such property as was actually used for school purposes. The North- 
western University v. The People ex rel. Miller, 8up. Ct. U. S.; Chicago Legal News, April 19, 1879. Re- 
versing same case, 80 111. R., 333. 

No provision of law is known exempting school lands from taxation, which have 
reverted on foreclosure of mortgage. Opinion Auditor Dubois, May 7, 1864. 

In order to exempt a school house from taxation, it should be held by the school 
directors under such title as will give them the right to possess and control it at all times for the 
use of the district. Pace v. County Commissioners of Jefferson Co., 20 111. R., 644. 

If a seminary is established as such by law, the lot on which it stands is not taxable. 
But if a private school, although called a "seminary," conducted for private gain or profit, it is 
not exempt from taxation. Opinion Auditor Miner, Feb. 14, 1868. 

(2) All church property actually and exclusively used for public worship, when the 
land is owned by the congregation, is exempt from taxation, the land to be of reasonable size 
for the location of the church. The buildings must be used exclusively for sacred and not for 
secular purposes. Trustees M. E. Church r. Chicago, 26 111. R., 482. The lot upon which a parson- 
age stands is subject to taxation. Opinion Att'y Gen. Edsall, March 17, 1873. A parsonage owned 
by a church is not exempt from taxation. Opinion Auditor Miner, April 11, 1867; Lippincott, 
Dec. 22, 1869; St. Peters Church v. Commissioners Scott Co., 12 Minn. R., 395. 

In regard to houses used for public worship, the intent of the law exempting them 
Is, that they shall be used for sacred purposes and not otherwise. That part so used may be ex- 
empt, and portions otherwise used may be taxed. First M. E. Church v. City of Chicago, 26 I1L 
R., 487. 

Church property may be assessed for special purposes, though not liable for ordi- 
nary taxes. City of Ottawa v. Fisher et al., 20 111. R., 423; The Trustees of the Illinois and Michigan 
Canal v. The City of Chicago, 12 111. R., 403. 

(3) Real estate owned by the State is not subject to taxation for state, county or 
municipal purposes, nor can it be legally assessed or sold for special assessments for local im- 

Srovements in cities. See case Taylor v. The People ex rel., Sup. Ct. 111., Sept. Term, 1872. 
'pinion Att'y Gen. Edsall, March 12, 1873. 

It is only the property owned by the State that is exempt from taxation, not that in which it 
ma$ ultimately share in avails. Ryan v. Gallatin County, 14 111. R, 83. 

The constitution of Illinois concerning exemption, declares t Art. 9, Sec. 3. The 
property of the State, counties and other municipal corporations, both real and personal, and 
sucn other property as may be used exclusively for agricultural and horticultural societies, for 
schools, religious, cemetery and charitable purposes, may be exempted from taxation ; but such 
exemption shall be only by general law. In the assessment of real estate, incumbered by pub- 
lic easement, any depreciation occasioned by such easement, may be deducted in the valuation 
of such property. 



DIV. Vn.] VALUING PERSONAL PROPERTY. 353 

swamp or overflowed lands belonging to any county, so long as 
the same remain unsold by such county. All public buildings 
belonging to any county, township, city or incorporated town, 
with the ground on which such buildings are erected, not ex- 
ceeding in any case ten acres. (1) 

Seventh — All property of institutions of purely public charity, 
when actually and exclusively used for such charitable purposes, 
not leased or otherwise used with a view to profit ; and all free 
public libraries. 

Eighth — All fire engines and other implements used for the ex- 
tinguishment of fires, with the building used exclusively for the 
safe keeping thereof, and the lot of reasonable size on which the 
building is located, when belonging to any city, village or town. 

Ninth — All market houses, public squares or other public 
grounds used exclusively for public purposes. All works, ma- 
chinery and fixtures belonging exclusively to any town, village 
or city, and used exclusively for conveying water to such town, 
village or city. 

Tenth — All property which may be used exclusively by socie- 
ties for agricultural, horticultural, mechanical and philosophical 
purposes, and not for pecuniary purposes.(2) 

RULES FOR VALUING PERSONAL PROPERTY. 

Bectiom. 

3. Personal property. 

3. Personal property.] § 3. Personal property shall be valued 

as follows :(3) 

(1) The exemption of swamp lands from taxation ceases when sold by the county, 

and it is presumed that such lands reverting on foreclosure of mortgage would not be exempt 
under the law. Opinion Auditor Miner, May 13, 1867. 

(2) Land to be exempt must be owned by tbe society or used by it without any 
compensation to the owner. It must be used exclusively for the purposes for which the society 
was created. The organization must not contemplate any pecuniary profit to its individual 
members. The land must not be used for purposes other than those incident to the legitimate 
work of the society even though the profits arising from such outside use are to be applied to 
the furtherance of such work. Any lands or other property owned by the society, not used in 
its legitimate work, even though lying idle and not producing revenue, should be assessed. 
Opinion Auditor Needles, May 25, 1878. 

(S) Tbe legislature cannot make a discrimination in favor of personal property. The 
burden must be imposed upon all the property within the limits taxed. Primm v. City of Belle- 
ville, 59 111. R., 142. 

It is indispensable, to support a levy or assessment of taxes, that there be a valu- 
ation of the property. Town qf Lebanon el al. v. Ohio & Mist. It. Co., 77 111. R., 539. 

It is made tbe duty of assessors, and State Board of Equalization, 80 far as 
charged with that duty, to assess all personal property at its " fair cash value," and all real 
estate at a "price it would bring at a fair voluntary sale," so that every person or corpora- 
tion shall pay a tax in proportion to his or its property. Law et al. t. The People, 87 111. R., 885. 

Tbe first cost of property is no evidence of its value. CAN. W. B, B. Co. v. 
Boone County, 44 111. R., 24L 

In valuing property the assessor has no right to discriminate for or against any class of 
property. The only criterion known to the law is the actual money worth of the property. Opin- 
ion Auditor Miner, May 28, Sept. 25, 1868, May 29, 1867. And this may be on a " green- 
back " basis, so called. Opinion Auditor Miner, May 21, I£66> 

23 



354 REVENUE. [DIY. VIL 

First — All personal property, except as herein otherwise di- 
rected, shall be valued at its fair cash value. 

Second — Every credit for a sum certain, payable either in money 
or labor, shall be valued at a fair cash value, for the sum so pay- 
able ; if for any article of property, or for labor or services of 
any kind, it shall be valued at the current price of such property, 
labor or service. 

Third — Annuities and royalties shall be valued at their then 
present total value. (1) 

Fourth — The capital stock of all companies and associations 
now or hereafter created under the laws of this state, (except 
those required to be assessed by the local assessors, as hereinafter 
provided) shall be so valued by the State Board of Equalization as 
to ascertain and determine, respectively, the fair cash value of such 
capital stock, including the franchise, over and above the assessed 
value of the tangible property of such company or association. Said 
board shall adopt such rules and principles for ascertaining the 
fair cash value of such capital stock, as to it may seem equitable 
and just ; and such rules and principles, when so adopted, if not 
inconsistent with this act, shall be as binding and of the same 
effect as if contained in this act, subject, however, to such change, 
alteration or amendment as may be found, from time to time, to 
be necessary by said board : Provided, that in all cases where 
the tangible property or capital stock of any company or associa- 
tion is assessed under this act, the shares of capital stock of any 
such company or association shall not be assessed or taxed in this 
state. This clause shall not apply to the capital stock, or shares 
of capital stock, of banks organized under the general banking 
laws of this state : Provided, further, that companies and associ- 
ations organized for purely manufacturing purposes, or for print- 
ing, or f or * publishing of newspapers, or for the improving and 
breeding of stock, shall be assessed by the local assessors in like 



Choses In action, inch as promissory notes, are to be listed at their true value. If a 
note is wholly worthless, It is not tojoe listed at all ; if it is of some value, but less than its face, 
it is to be listed at what it is worth. Exchange Bank Columbus v. Hincs, 3 Ohio State R„ 1. 

Under a law providing "for taxing all property in this State according to its true value," 
Held, that capital invested in the business of purchasing hogs and slaughtering and packing 
pork for sale or transportation, is subject to taxation. Jackson v. Steele, 15 Ohio R, 662. 

One portion of the tax payers of* a county cannot be required to pay more taxes in 

Eroportion to its value than another portion in the same county, and a discrimination cannot 
e made in this regard against the property of a railroad company, and although property is 
assessed at a low rate, still uniformity must be observed. O. & N. W. R. R. Co. v. Boone County, 
44 111. R., 240. 

(1) The third section or the revenue act requiring that the capital stock of all com- 
panies and associations created under the laws of this State, shall be so valued by the State 
Board of Equalization as to ascertain and determine, respectively, the fair cash value of such 
capital stock, including the franchise, over and above the assessed value of the tangible property 
of such company or association being a general law, and uniform as to the class upon which it 
operates, is not in violation of any constitutional provision. Porter et al. v. £. M. I. <& St. L. & 
£ Qo., n IU. B-, 5$, 



DIV. yil] listing personal property. 355 

manner as the property of individuals is required to be assessed.(l) 
[As amended, 1879. 

RULES FOR VALUING REAL ESTATE. 

Section. 

4. Real property. 

4. Real property.] § 4 Real property shall be valued as fol- 
lows :(2) * 

First — Each tract or lot of real property shall be valued at its 
fair cash value, estimated at the price it would bring at a fair, 
voluntary sale. 

Second — Taxable leasehold estates shall be valued at such a 
price as they would bring at a fair, voluntary sale for cash. 

Third — When a building or structure is located on the right of 
way of any canal, railroad or other company leased or granted for 
a term of years to another, the same shall be valued at such a 
price as such building or structure and lease or grant would sell at 
a fair, voluntary sale for cash. 

Fourth — In valuing any real property on which there is a coal 
or other mine, or stone or other quarry, the same shall be valued 
at such a price as such property, including the mine or quarry, 
would sell at a fair, voluntary sale for cash. 

PERSONAL PROPERTY — WHEN LISTED. 

Section. 

5. Time to list. 

5. Time to list.] § 5. Personal property shall be listed be- 
tween the first day of May and the first day of July of each year, 
when required by the assessor, with reference to the quantity held 
or owned on the first day of May, in the year for which the prop- 
erty is required to be listed. Personal property purchased or 

(1) Where the tangible property or capital stock of a corporation (excepting 
bank* organized under the general law) is assessed, the shares of stock of the corporation can- 
not be assessed to the owners. Republic Life Ins. Co. t. Pollack el al., 75 m. R., 300. 

The legal property of the shareholder in a corporation is quite distinct from that 
of the corporation, although the shares of stock have no value save that which they derive from 
the corporate property ana franchise ; and a tax levied upon the property of the one is not, in 
any legal sense, levied upon the property of the other. A tax upon the capital stock and fran- 
chise of a corporation is not a tax upon the Bhares of the shareholders. Porter el al. ▼. R.R.L& 
St. L, R. R. Co., 76 111. R., 561. 

In assessing the value of a railroad for purposes of taxation, the inquiry should 
be, what is the property worth, to be used for the purposes for which it was designed, and not 
for any other purposes to which it might be applied, and in all cases it is proper to consider what 
would a prudent man give for the property as a permanent investment, with a view to present 
and future income, and the assessment should be at its present and not future value. State qf 
Illinois v. Illinois Central Railroad Co., 27 111. R., 70. 

(2) The withdrawal of real estate from the limits of a municipal corporation 

and from the power of taxation by the municipality, after such corporation has incurred a large 
indebtedness which must be paid by taxation, is in violation of the constitutional provision re- 
garding uniformity as the basis of taxation both in respect to persons and to property, unless 
the act of disconnecting territory is attended with some corresponding benefit to the munici- 
pality. City of Oalesb-mrg ▼. Savkinson etal.,7bUL R., 152. 



356 REVENUE. [DIV. VIL 

acquired on the first day of May shall be listed by or for the per- 
son purchasing or acquiring it. 

WHO SHALL LIST AND WHAT LISTED. 

Section. 

6. Manner of listing. 

6. Manner of listing.] § 6. Personal property shall be listed 
in the manner following :(1) 

First — Every person of full age and sound mind, being a resi- 
dent of this state, shall list all his moneys, credits, bonds or 
stocks, shares of stock of joint stock or other companies, (when 
the capital stock of such company is not assessed in this state), 
moneys loaned or invested, annuities, franchises, royalties, and 
other personal property. 

Second — He shall also list all moneys and other personal prop- 
erty invested, loaned or otherwise controlled by him as the agent 
or attorney, or on account of any other person or persons, com- 
pany or corporation whatsoever, and all moneys deposited, sub- 
ject to his order, check or draft, and credits due from or owing 
by any person or persons, body corporate or politic. [See § 19. 

Third — The property of a minor child shall be listed by his 
guardian ; if he have no guardian, then by the father, if living ; 
if not, by the mother, if living ; and if neither father nor mother 
be living, by the person having such property in charge. 

Fourth — The property of an idiot or lunatic, by his conserva- 
tor ; or if he has no conservator, by the person having charge of 
such property. 

Fifth — The property of a wife by her husband, if of sound 
mind ; if not, by herself. 

Sixth — The property of a person for whose benefit it is held 
in trust, by the trustee ; of the estate of a deceased person, by 
the executor or administrator. 

(1) Taxes mar be imposed upon persons engaged in the classes of business, or 

exercising the callings specified in first section of Art. IX, of the Constitution, entitled Revenue, 
by license, or a tax upon receipts, or in such manner as the General Assembly may see fit to 
provide by general law, uniform as to each class of interest taxed. Capital invested otherwise 
than in some business or interest specified in the latter branch of that section, can only be taxed 
by valuation. Opinion Att'y Gen. Edsall, Jan. 23, 1877. 

The intention of the revenue law is that all property controlled by a resident 
of this State, as agent or attorney, or on account of any other person or persons, company or 
corporation, should be listed by him and assessed in the township or district in which he resides ; 
the obvious reasons being : 

First— That the property would be " in sight " in that district, and hence less liable to escape 
taxation ; and, secondly— even though the actual owner should list it at his residence, his assessor 
would not have an opportunity to arrive at its fair cash value by actual inspection. The regu- 
lar steps, as indicated by the law, are as follows : 

The second clause of section 6 makes it the duty of the person who controls to list the prop- 
erty for taxation. Section 9 prescribes the place at which it shall be assessed. Section 19, time 
when listed and manner of listing. Section 254 creates a lien for the tax upon the personal 
property of the person assessed (i. e. the agent). See 73, 111. R.,125, and section 256 creates a lien 
upon the property assessed in favor of the agent, until he is indemnified against the payment 
of the tax. Opinion Auditor Nebplbs, June 6th, 1878. 



DIt. VII.] LISTING PERSONAL PROPERTY. 357 

Seventh — The property of corporations whose assets are in the 
hands of receivers, by such receivers. 

Eighth — The property of a body politic or corporate, by the 
president, or proper agent or officer thereof. 

Ninth — The property of a firm or company, by a partner or 
agent thereof. 

Tenth — The property of manufacturers and others in the hands 
of agent, by and in the name of such agent, as merchandise. 

WHERE LISTED AND ASSESSED, AND WHAT HELD TO BE PERSONAL 
PROPERTY — MANNER OF LISTING. 
Section. 

7. Where personal property listed. 

8. Farm property — Owner not residing on farm. 

9. Of manufactures in hands of agents. 

10. Purchaser's interest in exempted lands, personalty. 

11. In transitu. 

12. Nursery stock. 

13. Personal property of banks and others. 

14. The personal property of gas and coke companies. 

15. The personal property of street railroad, plank road, etc. 

16. The horses, stages and other personal property of stage companies. 

17. The personal property of express or transportation companies. 

18. Consignee only his interest. 

19. Listing on behalf of others. 

20. Interest on bonds. 

21. Money secured by deed. 

22. Removing — Where owner 

23. How place of listing fixed. 

24. Schedule. 

7. Where personal property listed.] § 7. Personal property, 
except such as is required in this act to be listed and assessed 
otherwise, shall be listed and assessed in the county, town, city, 
village or district where the owner resides. The capital stock 
and franchises of corporations and persons, except as may b© 
otherwise provided, snail be listed and taxed in the county, town, 
district, city or village where the principal office or place of busi- 
nes of such corporation or person is located in this state. If 
there be no principal office or place of business in this state, then 
at the place in this state where any such corporation or per- 
son transacts business.(l) 

(1) A listing of the capital stock of a company or association created under the laws 
of this State, including its franchises, either by the corporation or the local assessor, is not an 
essential prerequisite to its valuation by the State Board of Equalization, and such valuation, 
without such listing and returns thereof made, will not render a tax levied thereon void. Pa- 
cific Hotel Co. v. Lieb et at., 83 111. R., 602. 

The local assessor is not required to fix any valuation on the capital stock of 
corporations and associations, but the matters required to be returned by him are merely such 
as the law deems to be important in enabling the State Board to discharge its duty intelli- 
gently. If such returns are regarded fraudulent or untrustworthy by the Board, they may en- 
tirely disregard them, and make the valuation from other sources supposed to be more accurate 
md reliable. Pacific Hotel Co. v. Lieb et al., b3 11L K., 602. 



358 REVENUE. [DIt. vii. 

8. Farm property— Owner not residing on farm.] § 8. When 
the owner of live stock or other personal property connected 
with a farm does not reside thereon, the same shall be listed and 
assessed in the town or district where the farm is situated : Pro- 
vided, if the farm is situated in several towns or districts, it shall 
be listed and assessed in the town or district in which the prin- 
cipal place of business on such farm shall be. 



Tiie funds and taxable property of insurance companies in the hands of local 

agents, should be assessed at the place where such agents transact their business although the 
company may have a general office in this State. Opinion Att'y Gen'l Edsall. 

Personal property must be listed for taxation, in the county, town or district where 
the owner resides, notwithstanding the property itself may remain and be used in another county, 
as in case of farming implements, stock, etc., upon a farm. King et al. v. McDrew et al„ 31 111. R., 
418. Yet if permanently located elsewhere, it may be listed there. Mills, Executor, etc. v. Thorn- 
ton et al., 26 111. R., 300. 

A person cannot choose where his property shall be taxed } this is fixed by law* 
Opinion Auditor Miner, Aug. 17, 1867. 

In regard to taxation in cities and incorporated towns, the place and manner Of 
taxation will be regulated by their charters. Opinion Auditor Mine*, Aug. 17, 1867 ; July 22, 
1867; Wilkie v. City of Pekin, 19 111. R., 160. 

It is not necessary that a person to be amenable to the taxing power, should be a citizen of, or 
domiciled within the Stale; but he must be a resident. There is a distinction in law between 
residence and domicil ; and a person may have the former in one State and the latter in another. 
Nor is the liability of taxation placed on the ground of citizenship. Tazewell County v. Daven- 
port, 40 111. R., 197. 

A person residing in this State, acting as agent for a non-resident, is liable to tax 
as agent on securities, taken for money loaned. Opinion Auditor Minkb, July 25, 1857; Taze- 
well County v. Davenport, 40 111. R., 197. 

Where three executors of an estate reside in the same township — two of them 
within the corporate limits of a village, the other without such limits— and the three have pos- 
session in law of the taxable moneys, credits, bonds and stocks of the estate, the same must, in 
view of the equities and analogies of the statute (which does not expressly provide for such a 
case), be entered for taxation— one-third as of the place of residence of each executor. And 
this principle would be applicable to a case where the executors resided in different townships. 
State v. Mathews, 10 Ohio State R. 

Merchandise is to be taxed at the place of business of the merchant, which may 
or may not be his residence. Opinion Auditor Mineb, Aug. 7, 1868. And where the same party 
has goods in different localities, carrying on business there, the property should be listed where 
it is located. Opinion Auditor Mineb, July 16, 1867. 

The stock or inteiest of a vessel, boat or ship, navigating the waters of this State, 
is taxable where the owner resides, and it is thought that no question concerning the taxation 
can arise which could be carried into the United States courts. Opinion Auditor Mineb, July 
20, 1867. The place or situs of a vessel is the place of its registration and port from which it 
regularly departs and returns. Wilkie v. City of Pekin, 19 III. R., 160. 

A lease of lands belonging to the State, including canal lands, etc., with improve- 
ments, may be taxed, and the interest of the tenant sold. LaSalle ilanvjacturing Co. v. The City 
Of Ottawa, 16 111. R, 418. 

Leasehold property belonging to the State, should be valued in the assessment, at the price 
the assessor believes can be obtained for tne leasehold, and this should include all rights and 
privileges belonging or in anywise pertaining thereto. Opinion Auditor Mineb, July 14, 1868. 

The law requires that persons owning personal property shall make, sign and 
deliver to the assessor a statement of their property subject to taxation. Town of Charlestown v. 
McCrory, 36 111. R.. 456. 

The fact that property subject to taxation has not been listed, although it improperly increases 
the burden of taxation upon the property that is listed, does not render the tax wholly void, or 
authorize the interference of a court oi equity. Exchange Bank Columbus v. Mines, 3 Ohio State 
R., 1. 

The assessor has no right to double the assessed value of property belonging to 
the estate of a deceased person on account of any act of the executor. Leper v. Pulsifer, 37 I1L 
R., 110. 

When a party makes out and delivers to the assessor a list of his taxable prop- 
erty, which is accepted without question, that officer has no power afterward, of his own mo- 
tion, to alter it without first giving the party assessed notice. If he does a court of equity will 
grant relief by injunction. Cleghorn v. Postlewaite et al., 43 111. R., 431. 

The assessor is to value real estate himself, and need not give notice thereof to the person 
Opinion Auditor Mineb, May 6, 1867. 



DiT. VII.] LISTING PERSONAL PROPERTY. 359 

9. Of manufactures in hands of agent] § 9. The property of 
manufacturers and others, in the hands of agents, shall be listed 
and assessed at the place where the business of such agent is 
carried on. [See § 19, 256. 

10. Purchaser's interest in exempted lands, personalty.] § 10. 
When real estate is exempt in the hands of the holder of the fee, 
and the same is contracted to be sold, the amount paid thereon 
by the purchaser, with the enhanced value of the investment and 
improvement thereon until the fee is conveyed, shall be held to 
be personal property, and listed and assessed as such, in the 
place where the land is situated. 

11. In transitu.] § 11. Personal property, in transitu, shall 
be listed and assessed in the county, town, city or district where 
the owner resides: Piovided, if it is intended for a business, it 
shall be listed and assessed at the place where the property of 
such business is required to be listed. (1) 

12. Nursery stock.] §12. The stock of nurseries, growing or 
otherwise, in the hands of nurserymen, shall be listed and assessed 
as merchandise. 

13. Personal property of banks and others.] § 13. The per- 
sonal property of banks or bankers, brokers, stock-jobbers, insur- 
ance companies, hotels, livery stables, saloons, eating houses, mer- 
chants and manufacturers, ferries, mining companies, and companies 
not specifically provided for in this act, shall be listed and assessed 
in the county, town, city, village or district where their business is 
carried on, except such property as shall be liable to assessment 
elsewhere, in the hands of agents. All persons, companies and 
corporations in this state owning steamboats, sailing vessels, wharf 
boats, barges and other water craft, shall be required to list the 
same for assessment and taxation in the county, town, city, village 
or district in which the same may belong or be enrolled, registered 
or licensed, or kept when not enrolled, registered or licensed. 

14.] § 14. Personal property of gas and coke companies ex" 

cept the pipes laid down, shall be listed and assessed in the town, 
village, district or city where the principal works are located. Gas 
mains and pipes, laid in roads, streets or alleys, shall be held to be 
personal property, and listed and assessed as such, in the town, 
district, village or city where the same are laid. 

15.] § 15. The personal property of street railroad, plank road, 
gravel road, turnpike or bridge companies shall be listed and 

(1) A state has no right to tax property In transitu from one State to another 
across its territory, or upon navigable rivers lying wholly or in part within its borders. A State 
has the right to tax all tangible personal property which has its actual gitua within its limits, 
whether owned by residents or non-residents. Taxes on personal property do not become liens 
until the tax books are received by the collector. Opinion Att'y Gen. Edsall, April 16, 1877. 



360 REVEHtJE. [DlT. TtL 

assessed in the county, town, district, village or city where the 
principal place of business is located. The track, road or bridge 
shall be held to be personal property, and listed and assessed as 
such, in the town, district, village or city where the same is located 
or laid. 

16.] § 16. The horses, stages and other personal property of 
stage companies or persons operating stage lines, shall be listed 
and assessed in the county, town, city or district where they are 
usually kept. 

1 7. J § 17. The personal property of express or transportation 
companies shall be listed and assessed in the county, town, 
district, village or city where the same is usually kept. 

18. Consignees only his interest.] § 18. No consignee shall be 
required to list, for taxation, the value of any property consigned 
to him for the sole purpose of being stored or forwarded, except 
to the extent of his interest in such property. 

19. Listing on behalf of others.] § 19. Persons required to 
list property on behalf of others, shall list in the same place in 
which they are required to list their own ; but they shall list it 
separately from their own, specifying in each case the name of the 
person, estate, company or corporation to whom it belongs. 

20. Interest on bonds.] § 20. Persons, for themselves or 
others, holding bonds or stocks of any kind, the principal of which 
bonds or stocks has been or may hereafter be exempted from tax- 
ation, shall list the amount of accrued interest on such bonds, 
without regard to the time when the same is to be paid. 

21. Money secured by deed.] § 21. Where a deed for real 
estate is held for the payment of a sum of money, such sum, so 
secured, shall be held to be personal property, and shall be listed 
and assessed as credits. 

22. Removing— Where owner assessed.] § 22. The owner of 
personal property removing from one county, town, city, village or 
district, to another, between the first day of May and the first day 
of July, shall be assessed in either, in which he is first called upon 
by the assessor. The owner of personal property moving into 
this state from another state, between the first day of May and the 
first day of July, shall list the property owned by him on the first 
day of May of such year, in the county, town, city, village or dis- 
trict in which he resides: Provided, if such person has been 
assessed, and can make it appear to the assessor that he is held for 
tax for the current year on the property, in another state, county, 
town, city or district, he shall not be again assessed for said year. 

23. How place of listing fixed.] § 23. In all questions that 
may arise under this act as to the proper place to list persona] 



DIV. VH.] FORM OF SCHEDULE. 361 

property, or when the same cannot be listed as stated in this act, 
if between several places in the same county, the place for listing 
and assessing shall be determined and fixed by the county board; 
and when between different counties or places in different counties, 
by the auditor of public accounts ; and when fixed in either case, 
shall be as binding as if fixed by this act. 

24. Schedule.] § 24 Persons required to list personal property 
shall make out, under oath, and deliver to the assessor, at the 
time required, a schedule of the numbers, amounts, quantity and 
quality of all personal property in their possession or under their 
control, required to be listed for taxation by them. It shall be the 
duty of the assessor to determine and fix the fair cash value of all 
items of personal property, including all grain on hand on the first 
day of May and in assessing notes, accounts, bonds and moneys, 
the assessor shall be governed by the same rules of uniformity that 
he adopts as to value in assessing other personal property, and the 
assessor is hereby authorized to administer the oath required in 
this section, and if any person shall refuse to make such schedule un- 
der oath, then the assessor shall list the property of such person 
according to his best judgment and information and shall add to the 
valuation of such list an amount equal to fifty per cent, of such 
valuation, and if any person making such schedule shall swear 
falsely he shall be guilty of perjury and punished accordingly. 
Any person so required to list personal property who shall refuse, 
neglect or fail when requested by the proper assessor, so to do, 
shall be deemed guilty of a misdemeanor, and on conviction there- 
of shall be fined in any sum not exceeding two hundred dollars, 
and the several assessors shall report any such refusal to the 
county attorney whose duty it is hereby made to prosecute the 
same. [As amended, 1879. 

FOEM OF SCHEDULE. 
Section. 

25. Schedule. 

26. When assessor may examine under oath, etc. 

25. Schedule.] § 25. Such schedule, when completed by the 
assessor in extending in a separate column the value of such prop- 
erty, shall truly and distinctly set forth. 

First — The number of horses of all ages, and the value thereof. 

Second — The number of cattle of all ages, and the value thereof. 

Third — The number of mules and asses of all ages, and the 
value thereof. 

Fourth — The number of sheep of all ages, and the value thereof. 

Fifth — The number of hogs of all ages, and the value thereof. 

Sixth — Every steam engine, including boilers, and the value 
thereof 



ot)2 REVENUE. j>IV. VIL 

Seventh — Every fire or burglar-proof safe, and the value thereof. 

Eighth — Every billiard, pigeon-hole, bagatelle or other similar 
tables, and the value thereof. 

Ninth — Every carriage and wagon, of whatsoever kind, and the 
value thereof. 

Tenth — Every watch and clock, and the value thereof. 

Eleventh — Every sewing or knitting machine, and the value 
thereof. 

Twelfth — Every piano forte, and the value thereof. 

Thirteenth — Every melodeon and organ, and the value thereof. 

Fourteenth— Every franchise, the description and the value thereof . 

Fifteenth — Every annuity and royalty, the description and the 
value thereof. 

Sixteenth — Every patent right, the description and the value 
thereof. 

Seventeenth — Every steamboat, sailing vessel, wharf-boat, barge 
or other water craft, and the value thereof. 

Eighteenth — The value of merchandise on hand. 

Nineteenth — The value of material and manufactured articles on 
hand. 

Tiventieth — The value of manufacturers' tools, implements and 
machinery (other than boilers and engines, which shall be listed 
as such). 

Twenty-first — The value of agricultural tools, implements and 
machinery. 

Twenty-second — The value of gold or silver plate and plated 
ware. 

Twenty- TJiird — The value of diamonds and jewelry. 

Twenty- Fourth — The amount of moneys of bank, banker, broker 
or stock-jobber. 

Twenty-fifth — The amount of credits of bank, banker, broker or 
stock-jobber. 

Twenty-sixth — The amount of moneys other than of bank, bank- 
er, broker or stock-jobber. 

Twenty-seventh — The amount of credits other than of bank, bank- 
er, broker or stock-jobber. 

Twenty-eighth — The amount and value of bonds or stocks. 

Twenty-ninth — The amount and value of shares of capital stock 
of companies and associations not incorporated by the laws of this 
state. 

Thirtieth — The value of property such person is required to list 
as a pawn-broker. 

Thirty-first — The value of property of companies and corpora- 
tions other than properly hereinbefore enumerated. 

Thirty-second — The value of bridge property. 



t>IV. V1L] RULES FOR LISTING CREDITS. 3(53 

TJiirty-third — The value of property of saloons and eating bouses. 

Thirty-fourth — The value of household or office furniture and 
property. 

Thirty-fifth — The value of investments in real estate and im- 
provements thereon required to be listed under this act. 

Thirty-sixth — The value of all other property required to be listed. 

26. When assessor may examine under oath and list property.] 
§ 26. That whenever the assessor shall be of opinion that the per- 
son listing property for himself or for any other person, company 
or corporation, has not made a full, fair and complete schedule of 
such property, he may examine such person under oath in regard 
to the amount of the property he is required to schedule, and for that 
purpose he is authorized to administer oaths ; and if such person 
shall refuse to answer under oath and a full discovery make, the 
assessor may list the property of such person or his principal, 
according to his best judgment and information. If the person so 
examined shall swear falsely, he shall be guilty of perjury, and 
punished accordingly. [See § 83. 

RULES FOR LISTING CREDITS. 
Section. 

27. What debts may be deducted from credits. 

28. Debts not deducted. 

29. Deduction verified by affidavit— Perjury— Fines— Statements, etc. 

27. What debts deducted from credits.] § 27. In making up 
the amount of credits which any person is required to list for 
himself, or for any other person, company or corporation, he shall 
be entitled to deduct from the gross amount of credits the amount 
of all bona fide debts owing by such person, company or corpora- 
tion, to any other person, company or corporation, for a consider- 
ation received; but no acknowledgement of indebtedness not 
founded on actual consideration, believed when received to have 
been adequate, and no such acknowledgment made for the purpose 
of being so deducted, shall be considered a debt within the mean- 
ing of this section ; and so much only of any liability, as surety for 
others, shall be deducted as the person making out the statement 
believes he is legally and equitably bound, and will be CQmpelled 
to pay on account of the inability or insolvency of the principal 
debtor ; and if there are other sureties who are liable to contribute, 
then only ho much as the surety in whose behalf the statement is 
made wih be bound to contribute : Provided, that nothing in this 
section shall be so constructed as to apply to any bank, company or 
corporation exercising banking powers or privileges, or to author- 
ize any deductions allowed by this section from the value of any 
Q j u nv -j^ m f taxation than credits. 



364 BE VENUE. [DIV. VIL 

28. What debts not deducted.] § 28. No person, company or 
corporation shall be entitled to any deduction from the amount of 
any bonds, stocks, or money loaned, or on account of any bond, note 
or obligation of any kind, given to any insurance company on 
account of premiums or policies, nor on account of any unpaid sub- 
scription to any religious, literary, scientific or charitable institution 
or society, nor on account of any subscription to or intallments 
payable on the capital stock of any company, whether incorporated 
or unincorporated. 

29. Deductions verified by oath— Perjury— Fines— Statements 
preserved.] § 29. In all cases where deductions are claimed from 
credits, the assessor shall require that such deductions be verified 
by the oath of the person, officer or agent claiming the same ; and 
any such person, officer or agent, knowingly or willfully making a 
fraudulent statement of such deductions claimed, so verified by 
affidavit, shall be liable to a fine of not less than $100, nor more 
than $1,000, in addition to all damages sustained by the state, 
county or other local corporation, to be recovered in any propel 
form of action in any court of competent jurisdiction, in the name 
of the People of the State of Illinois. Such fines, when recovered, 
shall be paid into the county treasury, and the damages, when 
collected, shall be paid to whom they belong. The assessor shall 
preserve the statement of deductions thus claimed, so verified by 
affidavit, and when he returns the assessment books shall file the 
same with the county clerk, to be kept on file in his office for two 
years, and at the expiration of such time said statement of deduc- 
tions shall be destroyed by said clerk, but, in the meantime, shall 
be subject only to the inspection of the officers charged with the 
execution of this law. 

RULES TOR, LISTING STOCK OF BUILDING ASSOCIATIONS, ETC. 

29a. Shares of stock, where and how assessed.] I 29a. The 
stockholders of every mutual building, loan and homestead association 
for the purpose of building and improving homesteads and loaning 
money to the members thereof only, whether such association is organi- 
zed under the laws of this state or of any other state or territory of the 
United States, shall list for taxation with the local assessor where such 
stockholders reside the number of shares of stock of such association 
owned by them respectively and the value thereof on the first day of 
May in each year, and the same shall be assessed against such stock- 
holders and the taxes thereon collected in the same manner as on other 
personal property. [Act of April 30, 1895.] 

295. When stockholders reside out of state.] 3 29b. The 
shares of stock of all stockholders residing without this state of such 
associations shall be assessed by the local assessor where such associa- 
tions are located, and, for the purpose of collecting the taxes thereon, a 
lien is hereby created upon such stock. [Act of April 30, 1895.] 



DIV. VII.] PAWN BROKER — LISTING CAPITAL STOCK. 365 

29c. Mode of determining value of stock.] I 29c. In deter- 
mining value of such stock for the purpose of taxation the value of the 
real estate owned by such associations shall be first deducted from their 
assets and such real estate shall be assessed in the manner now pro- 
vided by law. [Act of April 30, 1895.] 

29tf. Shares of stock — how assessed.] I 29d. The shares of 
stock and property of every such mutual building, loan and homestead 
association shall be assessed as herein provided, and not otherwise. 
[Act of April 30, 1895.] 

RULES FOR LISTING PROPERTY, ETC. OP BANKS, BROKERS, ETC. 

30. Rules for listing.] I 30. Every bank (other than a na- 
tional bank) banker, broker or stock-jobber, shall, at the time fixed 
by this act for listing personal property, make out and furnish to the 
assessor a sworn statement,, showing: 

First — The amount of money on hand or in transit. 

Second — The amount of funds in the hands of other banks, bankers 
brokers, or others, subject to draft. 

Third — The amount of checks, or other cash items, the amount 
thereof not being included in either of the preceding items. 

Fourth — The amount of bills receivable, discounted or purchased, 
and other credits due or to become due, including accounts receiveable, 
and interest accrued but not due, and interest due and unpaid. 

Fifth — The amount of bonds and stocks of every kind, and 
shares of capital stock of joint stock of other companies or cor- 
porations, held as an investment, or any way representing assets. 

Sixth — All other property appertaining to said business, other 
than real estate, (which real estate shall be listed and assessed as 
other real estate is listed and assessed under this act.) 

Seventh — The amount of all deposits made with them by other 
parties. 

Eighth — The amount of all accounts payable, other than current 
deposit accounts. 

Ninth — The amount of bonds or other securities exempt by law 
from taxation, specifying the amount and kind of each, the same 
being included in the preceding fifth item. 

The aggregate amount of the first, second and third items in 
said statement, shall be listed as moneys. The amount of the sixth 
item shall be listed the same as other similar personal property is 
listed under this act. The aggregate amount of the seventh and 
eighth items shall be deducted from the aggregate amount of the 
fourth item of said statement, and the amount of the remainder, if 
any shall be listed as credits. The aggregate amount of the ninth 
item shall be deducted from the aggregate amount of the fifth item of 
such statement, and the remainder shall be listed as bonds or stocks. 



366 REVENUE. [DIV. VII. 



PAWN-BROKER, 

31. Who is a pawn-broker.] I 31. Every person or company 
engaged in the business of receiving property in pledge or as security 
for money or other thing advanced to the pawner or pledger, shall be 
held to be a pawn-broker, and shall, at the time required by this act, 
return, under oath, the value of all property pledged and held by him 
as a pawn-broker, on hand on the first day of May, annually, and taxes 
shall be charged upon the fair cash value of such property, to such 
pawn-broker, the same as other property. 

LISTING CAPITAL STOCK, FRANCHISES, ETC. 

32. Sworn statement — form.] \ 32. Banking, bridge, ex- 
press, ferry, gravel road, gas, insurance, mining, plank road, savings 
bank, stage, steamboat, street railroad, transportation, turnpike, 
and all other companies and associations incorporated under the 
laws of this state (other than banks organized under the general 
bankling laws of this state and the corporations required to be 
assessed by the local assessors as hereinbefore provided) shall in 
addition to the other property required by this act to be listed, 
make out and deliver to the assessor a sworn statement of the 
amount of its capital stock, setting forth particularly. 

First — The name and location of the company or association. 

Second — The amount of capital stock authorized, and the num- 
ber of shares into which such capital stock is divided. 

Third — The amount of capital stock paid up. 

Fourth — The market value, or if no market value, then the 
actual value of the shares of stock. 

Fifth — The total amount of all indebtedness, except the in- 
debtedness for current expenses, excluding from such expenses 
the amount paid for the purchase or improvement of property. 

Sixth — The assessed valuation of all its tangible property. Such 
schedule shall be made in conformity to such instruction and 
forms as may be prescribed by the Auditor of Public Accounts. 
In all cases of failure or refusal of any person, officer, company 
or association to make such return or statement, it shall be the 



entitled to all the privileges and immunities of citizens of the several states." It Is no violation 
of the privilege and immunities of citizens of other states to require a corporation, of which 
they are stockholders to submit to such taxation as the State shall see fit to impose as a condi- 
tion of doing business therein. Cooley on Taxation, p. 65, and cases cited. 

The -words "capital stoch," as used in the act of 1872, do not mean "shares of 
stock," either separately or in the aggregate, but are intended to designate the property of the 
corporation subject to taxation. Porter et al. t. R. R. I. & St. L. R. R. Co., 76 111. R., 561. 

Section 1, article 9, of the constitution, only requires that corporations shall be 

taxed in such manner as the general assembly shall from time to time direct by general law, 
and the only uniformity required is as to the class upon which such genera] law shall operate. 
I'orter et al. ▼. R. R. & St. L. R. R. Co., 76 111. R., 561. 

The legislature may rightfully pro-vide for taxing the capital stock of corpor- 
ations, instead of the shares in the hands of the holders, and require corporations to pay such 
tax, leaving them to deduct the same from the dividends. Ottawa, Qla^s Co. v. .VcCaleb.ete.,81 IU 
R M 556, 



DIV. til] state and national banks. 367 

duty of the assessor to make such return or statement from the 
best information which he can obtain. (1) [As amended. 1879. 

33.— Schedule returned— Forwarded to auditor— State Board of 
equalization to assess capital stock.] § 33. Such statements shall 
be scheduled by the assessor ; and such schedule, with the state- 
ments so scheduled, shall be returned by the assessor to the county 
clerk. Said clerk shall, at the time he makes his report of assess- 
ment, forward to the auditor all such schedules and statements so 
returned to him. The auditor shall, annually, on the meeting of 
the state board of equalization, lay before said board the schedules 
and statements herein required to be returned to him ; and said 
board shall value and assess the capital stock of such companies 
or associations, in the manner provided in this act. 

34. Franchise to be listed and valued.] § 34. Every person 
owning or using a franchise granted by any law of this state, 
shall, in addition to his other property, list the same as personal 
property, giving the total value thereof. (2) 

state and national banks. (3) 

SECTION. 

35. How assessed and taxed. 

36. List of stockholders to be kept, etc. 

37. Shares listed in owner's name — Tax extended. 

38. How tax on shares collected — Lien. 

39. Dividends to be held for taxes — Shares sold. 

35. How assessed and taxed.] § 35. The stockholders in every 
bank located within this state, whether such bank has been or- 
ganized under the banking laws of this state or of the United 

(1) The law requiring the assessor to make and return a schedule, where the 
corporation fails to list its property, is not intended for the benefit of the corporation ; and the 
neglect of the local assessor to do his duty, furnishes no excuse for the negligence of the officers 
of a corporation. They should make the proper returns to the assessor whether solicited or not 
and thus they can be heard through such officer. If this is not done, thev may still be heard! 
on proper application, before the state board. Pacific Hotel Co. v. IAeb , 83 111. R., 602. 

(2) A franchise of a corporation is property, and has a value capable of being esti- 
mated, and is therefore not only liable to be taxed, but under the constitution is required to be 
in some appropriate mode. Ottawa Glass Co. v. McCaleb, etc, 81 111. R., 556 ; Porter et at. v. R, R I 
<C St. L. R. R. Co., 76 111. R.. 561. 

(3) A state tax against a shareholder of a national bank, for any year, under the 
law then in force, and voluntarily paid, cannot be recovered back, because the assessment under 
the law. was illegal ; the property being subject in some mode to taxation. People ex ret. v. Miner 
46 111. R., 374 ; Van Allen ▼. The Assessors, 3 Wallace R., 573; Bradley v. State of Illinois, 4 Wallace 
R., 457. 

Whether the shares of national bank stock are listed for taxation by the individual owners, or 
the capital stock is listed by the bank, a similar valuation and a like burden are imposed, and 
in whichever mode the assessment is made, there is no wrong perpetrated and no injustice done. 
Board of Supervisors of Stephenson Co. v. Manny, 54 111. R., 160. 

The assessors will ascertain the ownership, number and value of all such shares in 
the stock of banks located in their respective counties and towns, end return the same as re- 
quired by this act, being governed by all the rules of valuation and regulations in other respects 
provided by law as to the assessment of other property not made inapplicable by the terms o/ 
this act, and the clerks will extend taxes thereon, and collectors will make collections in ac- 
cordance with the general revenue laws and the provisions of this act. Circular Auditor Minkr, 
July 1, 1867. ^ 



368 REVENUE. [DIY. VIL 

States, shall be assessed and taxed on the value of their shares of 
stock therein, in the county, town, district, village or city where 
such bank or banking association is located, and not elsewhere, 
whether such stockholders reside in such place or not. Such 
shares shall be listed and assessed with regard to the ownership 
and value thereof, as they existed on the first day of May, annu- 
ally, subject, however, to the restriction that taxation of such 
shares shall not be at a greater rate than is assessed upon any 
other moneyed capital in the hands of individual citizens of this 
state, in the county, town, district, village or city where such 
bank is located. The shares of capital stock of national banks 
not located in this state, held in this state, shall not be required 
to be listed under the provisions of this act. 

36. List of stockholders to be kept, etc.] § 36. In each such 
bank there shall be kept at all times a full and correct list of the 
names and residences of its stockholders, and of the number of 
shares held by each ; which list shall be subject to the inspection 
of the officers authorized to assess property for taxation ; and it 
shall be the duty of the assessor to ascertain and report to the 
county clerk a correct list of the names and residences of all 
stockholders in any such bank, with the number and assessed 
value of all such shares held by each stockholder. 

37. Shares listed in names of owners — Tax extended.] § 37. 

The county clerk, to whom such returns are made, shall enter the 
valuation of such shares in the tax lists, in the names of the re- 
spective owners of the same, and shall compute and extend taxes 
thereon the same as against the valuation of other property in 
the same locality. 

38. How tax on shares collected — Lien.] § 38. The collec- 
tor of taxes, and the officer or officers authorized to receive taxes 
from the collector, may, all or either of them, have an action to 
collect the tax assessed on any share or shares of bank stock 
from the avails of the sale of such share or shares ; and the tai 
against such share or shares shall be and remain a lien thereou 
till the payment of said tax. 

39. Dividends to be held for taxes — Shares sold.] § 39. Foi 
the purpose of collecting such taxes, it shall be the duty of every 
such bank, or the managing officer or officers thereof, to retain so 
much of any dividend or dividends belonging to such stockhold^ 
ers as shall be necessary to pay any taxes levied upon their shares 
of stock, respectively, until it shall be made to appear to such 
bank or its officers that such taxes have been paid ; and any 
officer of any such bank who shall pay over or authorize the 
paying over of any such dividend or dividends, or any portion 
thereof, contrary to the provisions of this section, shall thereby 



DIV. VII.] LISTING PROPEETY OF RAILROADS. 



3G9 



become liable for such tax ; and if the said tax shall not be paid, 
the collector of taxes where said bank is located shall sellsaid 
share or shares to pay the same, like other personal property. 
And, in case of sale, the provision of law in regard to the transfer 
of stock when sold on execution, shall apply to such sale. 

MANNER OF LISTING AND VALUING THE PROPERTY OF RAILROADS. 

Section. 

40. Schedules— Value on first of May. 

41. Time of filing— Form of schedule. 

42. "Railroad track"— Discription of. 

43. How " railroad track" listed and taxed. 

44. ' 4 Rolling stock ' '—Schedule. 

45. How "rolling stock" listed and taxed. 

46. Personalty and real estate other than " rolling stock," etc. 

47. How such other personal and real property to he assessed. 

48. Railroad returns to auditor. 

49. Neglect to return. 

50. Schedules— Board to assess railroad property. 

51. Railroad tax books— Extending and collecting tax. 

52. Description of platted lands. 

40. Schedules — 1st May,] § 40. Every person, company or cor- 
poration owning, operating or constructing a railroad in this 
state, shall return sworn lists or schedules of the taxable prop- 
erty of such railroad, as hereinafter provided. Such property 
shall be listed and assessed with reference to the amount, kind 
and value on the first day of May of the year in which it is 
listed.(l) 

41. Time of filing schedule— Form of same.] § 41. They shall, 
in the month of May of the year 1873, and at the same time in 
each year thereafter when required, make out and file with the 
county clerks of the respective counties in which the railroad 
may be located, a statement or schedule showing the property 
held for right of way, and the length of the main and all si do 
and second tracks and turnouts in such county, and in each city, 
town and village in the county, through or into which the road 
may run, and describing each tract of land, other than a city, 
town or village lot, through which the road may run, in accord- 
ance with the United States surveys, giving the width and length 
of strip of land held in each tract, and the number of acres 
thereof. They shall also state the value of improvements and 
stations located on the right of way. New companies shall make 

(1) The road over -which a company occasionally runs Its trains under a mere 
easement or a license is not any part of its main track, so as to subject it to assessment for taxa- 
tion in that county, and where a county illegally as.- esses and collects a tax upon rolling stock of 
a railroad company, it not being taxable in such county by reason of the company only using 
another road therein under a mere easement, the company mav bring its action against the 
county and recover the money back. Cook County v. C. B. 6c Q. B. R. Co., 35 111. R.. &40. 

24 



370 REVENUE. |DIV. VH. 

Buch statement in May next after the location of their roads. 
When such statement shall have been once made, it shall not be 
necessary to report the description as hereinbefore required, un- 
less directed so to do by the county board ; but the company 
shall, during the month of May, annually, report the value of 
such property, by the description set forth in the next section of 
this act, and note all additions and changes in such right of way 
as shall have occurred. (1) 

42. " Railroad track "—Description of.] § 42. Such right of 
way, including the superstructures of main, side or second track 
and turnouts, and the station and improvements of the railroad 
company on such right of way, shall be held to be real estate for 
the purposes of taxation, and denominated "railroad track," and 
shall be so listed and valued; and shall be described in the 
assessment thereof as a strip of land extending on each side of 
such railroad track, and embracing the same, together with all 
the stations and improvements thereon, commencing at a point 
where such railroad track crosses the boundary line in entering 
the county, city, town or village, and extending to the point 
where such track crosses the boundary line leaving such county, 
city, town or village, or to the point of termination in the same, 
as the case may be, containing acres, more or less, (in- 
serting name of county, township, city, town or village boundary 
line of same, and number of acres, and length in feet,) and when 
advertised or sold for taxes, no other description shall be neces- 
sary. 

43. How "railroad track" listed and assessed.] §43. The 
value of the "railroad track" shall be listed and taxed in the 
several counties, towns, villages, districts and cities, in the pro- 
portion that the length of the main track in such county, town, 
village, district or city bears to the whole length of the road in 
this state, except the value of the side or second track, and all 
turnouts, and all station houses, depots, machine shops, or other 
buildings belonging to the road, which shall be taxed in the 
county, town, village, district or city in which the same are 
located. 

44. "Rolling stock "—Schedule.] §44. The moveable prop- 
erty belonging to a railroad company shall be held to be per- 
sonal property, and denominated, for the purpose of taxation, 
"rolling stock." Every person, company or corporation owning, 

(1) Railroad track is required to be assessed by the State Board of Equalization, 
but all other real estate of railroad companies, including the stations and other buildings and 
Btructures thereon, must be assessed by the local assessors. The term " right of way " can only 
be understood as embracing the land used as a way for the road, and not such additional 
ground as may be used for the convenience of the railroad, but not a part of its way. C. B & 
Q. E. R. Co. v. Paddock, et al., 75 111. R., 616. 



DIV. VH.] LISTING PROPERTY OF RAILROADS. 371 

constructing or operating a railroad in this state, shall, in the 
month of May, annually, return a list or schedule, which shall 
contain a correct detailed inventory of all the rolling stock be- 
longing to such company, and which shall distinctly set forth the 
number of locomotives of all classes, passenger cars of all classes, 
sleeping and dining cars, express cars, baggage cars, house cars, 
cattle cars, coal cars, platform cars, wrecking cars, pay cars, 
hand cars and all other kinds of cars. 

45. How "rolling stock" listed and taxed.] § 45. The rolling 
stock shall be listed and taxed in the several counties, towns, vil- 
lages, districts and cities, in the proportion that the length of the 
main track used or operated in such county, town, village, district 
or city bears to the whole length of the road used or operated by 
such person, company or corporation, whether owned or leased by 
him or them in whole or in part. Said list or schedule shall set 
forth the number of miles of main track on which said rolling stock 
is used in the state of Illinois, and the number of miles of main 
track on which said rolling stock is used elsewhere. 

46. Personalty and real estate other than " rolling stock " and 
"railroad track" where listed.] §46. The tools and materials 
for repairs, and all other personal property of any railroad except 
" rolling stock," shall be listed and assessed in the county, town, 
village, district or city wherever the same may be on the first day 
of May. All real estate, including the stations and other build- 
ings and structures thereon, other than that denominated " rail- 
road track," belonging to any railroad, shall be listed as lands or 
lots, as the case may be, in the county, town, village, district or 
city where the same are located. 

47. How snch other personal and real property to be assessed.] 

§ 47. The county clerk shall return to the assessor of the town or 
district, as the case may require, a copy of the schedule or list of 
the real estate (other than " railroad track,") and of the personal 
property (except " rolling stock,") pertaining to the railroad; and 
such real and personal property shall be assessed by the assessor. 
Such property shall be treated in all respects, in regard to assess- 
ment and equalization, the same as other similar property belong- 
ing to individuals, except that it shall be treated as property 
belonging to railroads, under the terms t( lands," " |pts," and " per- 
sonal property." 

48. Railroad returns to auditor.] § 48. At the same time that 
the lists or schedules are hereinbefore required to be returned to 
the county clerks, the person, company or corporation running, 
operating or constructing any railroad in this state, shall return to 
the auditor of public accounts sworn statements or schedules, as 
follows: 



372 REVENUE. [div. vn. 

First — Of the property denominated "railroad track," giving 
the length of the main and side or second tracks and turn outs, 
and showing the proportions in each county, and the total in the 
state. 

Second — The "rolling stock," giving the length of the main track 
in each county, the total in this state, and the entire length of the 
road. 

Third — Showing the number of ties in track per mile, the weight 
of iron or steel per yard, used in main or side tracks ; what joints 
or chairs are used in track, the ballasting of road, whether graveled 
or dirt, the number and quality of buildings or other structures on 
"railroad track," the length of time iron in track has been used, 
and the length of time the road has been built. 

Fourth — A statement or schedule showing : 

1. The amount of capital stock authorized, and the number of 
shares into which such capital stock is divided. 

2. The amount of capital stock paid up. 

3. The market value, or if no market value, then the actual 
value of the shares of stock. 

4. The total amount of all indebtedness, except for current 
expenses for operating the road. 

5. The total listed valuation of all its tangible property in this 
state. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of public accounts. 

49. Neglect to return.] § 49. If any person, company or cor- 
poration, owning, operating or constructing any railroad, shall 
neglect to return to the county clerks the statements or schedules 
required to be returned to them, the property so to be returned 
and assessed by the assessor shall be listed and assessed as other 
property. In case of failure to make returns to the auditor, as 
hereinbefore provided, the auditor, with the assistance of the 
county clerks and assessors, when he shall require such assistance, 
shall ascertain the necessary facts and lay the same before the state 
board of equalization. In case of failure to make such statements, 
either to the county clerk or auditor, such corporation, company 
or person shall forfeit, as a penalty, not less than 1,000 nor more 
than $10,000 for each offense, to be recovered in any proper form 
of action, in the" name of the People of the State of Illinois, and 
paid into the state treasury. 

50. Schedules— Board to assess railroad property.] § 50. The 

auditor shall, annually, on the meeting of the state board of 
equalization, lay before said board the statements and schedules 
herein required to be returned to him ; and said board shall assess 
such property in the manner hereinafter provided. 



©IV. VLT.] TELEGRAPH COMPANIES. 373 



51. Railroad tax book— Extending and collecting tax.] § 51. 
The county clerk shall procure, at the expense of the county, a 
record book, properly ruled and headed, in which to enter the 
railroad property of all kinds, as listed for taxation, and shall 
enter the valuations as assessed, corrected and equalized, in the 
manner provided by this act ; and against such assessed, corrected 
or equalized valuation, as the case may require, the county clerk 
shall extend all the taxes thereon for which said property is liable. 
And at the proper time fixed by this act for delivering tax books 
to the county collector, the clerk shall attach a warrant, under his 
seal of office, and deliver said book to the county collector, upon 
which the said county collector is hereby required to collect the 
taxes therein charged against railroad property, and pay over and 
account for the same in the manner provided in other cases. Said 
book shall be returned by the collector and be filed in the office of 
the county clerk for future use. 

52. Description of platted land.] § 52. When any railroad 
company shall make or record a plat of any contiguous lots or 
parcels of land belonging to it, the same may be described as des- 
ignated on such plat. 

TELEGRAPH COMPANIES — RETURN. 

Section. 

53. Schedule. 

54. Board of equalization to assess — How tax collected. 

55. Office furniture, etc., how listed and assessed. 

53. Schedule.] § 53. Any person, company or corporation, 

using or operating a telegraph line in this state, shall, annually, in 
the month of May, return to the auditor of public accounts a 
schedule or statement, as follows : 

First — The amount of capital stock authorized, and the number 
of shares into which such capital stock is divided. 

Second — The amount of capital stock paid up. 

Third — The market value, or if no market value, then the actual 
value of the shares of stock. 

Fourth — The total amount of all indebtedness, except current 
expenses, for operating the line. 

Fifth — The length of line operated in each county, and the total 
in the state. 

Sixth — The total assessed valuation of all its tangible property 
in this state. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of public accounts, 
and with reference to amounts and values on the first day of May 
of the year for which the return is made. 



374 REVENUE. DIV. VILJ 

54. Board of equalization to assess — How tax collected.] 

§ 54. The auditor shall annually, on the meeting of the state board of 
equalization, lay before said board the statement or schedule herein 
required to be returned to him ; and said board shall assess the capital 
si .k of such telegraph company, in the manner hereinafter provided. 
The tax charged on the capital stock of telegraph companies shall be 
placed in the hands of county collectors, in a book provided for that 
purpose, the same as is required for railroad property, and may be inclu- 
ded in same book with railroad property. 

55. Office furniture, etc., how listed and assessed.] § 55. 
The office furniture and other personal property of telegraph companies 
shall be listed and assessed in the county, town, district, village or city 
where the same is used or kept. 

PENALTY. 

56. False schedule, etc.] § 56. If any person or corporation 
shall give a false or fraudulent list, schedule or statement, required by 
this act, or shall fail or refuse to deliver to the assessor, when called on 
for that purpose, a list of the taxable personal property which he is re- 
quired to list under this act, he or it shall be liable to a penalty of not 
less than $10, nor more than $2,000, to be recovered in any proper form 
of action, in the name of the people of the State oft Illinois, on the 
complaint of any person. Such fine, when collected, to be paid into 
the county treasury. 

57. Perjury.] § 57. Whoever shall willfully make a false list, 
schedule or statement, under oath, shall, in addition to the penalty pro- 
vided in the preceding section, be liable as in the case of perjury. 

REAL PROPERTY— AS OF WHAT TIME LISTED— WHO LIABLE FOR TAX- 

58. Real property — Listed May 1st.] § 58. All real property 
in this state, subject to taxation under this act, including real estate 
becoming taxable for the first time, shall be listed to the owners thereof^ 
by such owners, their agents, county clerks or assessors, or the county 
board, and assessed for the year one thousand eight hundred aDd eighty- 
one, and yearly thereafter, with reference to the amount owned on the 
first day of May, in each year, including all property purchased on that 
day: Provided, that no assessment of real estate shall be considered as 
illegal by reason of the same not being listed or asesssed in the name 
of the owner or owners thereof. [As amended, 1881. 

59. Owner on 1st May liable.] § 69. The owner of property 
on the first day of May in any year, shall be liable for the taxes of 
that year. The purchaser of property on the first day of May shall be 
considered as the owner on that day. 



DIV. VII.] SUBDIVIDING. 875 

60. Leasehold interest in exempted lands.] § 60. When 

real estate, which is exempt from taxation, is leased to another whose 
property is not exempt, and the leasing of which does not make the real 
estate taxable, the leasehold estate and the appurtenances shall be listed 
as the property of the lessee thereof, or his assignee, as real estate. 

61. When certain lands become taxable.] § 61. Government 
lands entered or located on or prior to the first day of May, shall be 
taxable for that year, and annually thereafter. School lands and lots 
sold shall be taxable in like manner as government lands. Lands and 
lots sold by the trustees of the Illinois and Michigan Canal shall be 
taxable from and after the time the full payment therefor is made. Illi- 
nois Central Railroad lands and lots shall be taxable from and after the 
time the last payment becomes due. Swamp lands and lots shall become 
taxable whenever the county sells, conveys or agrees to convey its title: 
Provided, that canal, Illinois Central Railroad and swamp lands and lots 
shall be, in other respects, governed, as to the time of becoming taxable, 
the same as government lands. 

SUBDIVIDING. 

62. Owner to plat — Record — Description.] § 62. In all 

cases where any tract or lot of land is divided in parcels, so that it 
cannot be described without describing it by metes and bounds, it shall 
be the duty of the owner to cause such land to be surveyed and platted 
into lots. Such plat shall be certified and recorded. The description 
of real estate, in accordance with the number and description set forth 
in the plat aforesaid, shall be deemed a good and valid description of 
the lot or parcel of land so described. (1) 

63. Owner neglecting — County clerk to cause plat, etc.] 
§ 63. If the owner of any such tract or lot shall refuse or neglect to 
cause such survey to be made within thirty (30) days after having been 



(1) It Is the duty of assessors to assess each tract of land separately, and a judg- 
ment and order of sale against a tract of land which has not been assessed, but which has been 
assessed in connection with other lands aggregately is erroneous. Howe et al. v. The People ex 
rel., 86 111. R.. 288. 

The description of property for purposes of taxation should be such that a qual- 
fied surveyor can locate it thereby. Sale under a description running " Part of section 12, etc.," 
without definitely locating such part is void for uncertainty. Opinion Auditor Needles, March 
12, 1878. 

A misdescription or defective description of a tract of land by an assessor will 
not affect the taxes imposed on other tracts, and the law will not allow a party resisting judg- 
ment against his property for taxes, to raise an objection which does not apply to his property, 
but does to that of others who do not object. Buck v. The People, 78 111. R., 560. 

The assessment of a tax upon a " part of a lot " or " one acre of a lot," without quantity or lo- 
cation in the one case or without location in the other is too vague and indefinite to authorize a 
pale of any part or in any place. Massie v. Long, 2 Ohio R., 287. 

A certain and definite description of each parcel of land or lot should be given. 
It is necessary to the validity of a tax sale that the land should appear upon the duplicate by a 
pertinent de:-cription, and in the name of the rightful owner, if known. If not known, how- 
ever, the land is still taxed, being entered to an unknown owner. The tax attaches upon the 
land, rather than upon the person ; not upon the number of entry or survey, but upon the land 
included in such entry or Burvey. Douglas v. Dangerfield, 14 Ohio R., 522 ; Massie v. Long, 2 Ohio 
R.. 287. 



376-377 REVENUE. [div. VII. 



notified by the county clerk, by publication of a notice in a* newspaper 
in the county, having general circulation, at least three times, said clerk 
shall cause such survey to be made and recorded ; and the expenses of 
the publication of such notice and of making such survey shall be added 
to the tax levied on such real property, and when collected, shall be 
paid on demand to the persons to whom it is due. [As amended, 1879. 

HOW LISTED AS BETWEEN COUNTIES. 

64. In two counties.] § 64. Any tract of land not exceeding 
one sixteenth of a section, shall be listed in the county where the 
greater part thereof is situated. When any such tract of land shall be 
situated equally in two counties, the auditor shall determine in which 
county it shall be listed. If there be several tracts similarly situated, 
the auditor shall apportion them equally between the counties as nearly 
as practicable. County clerks may have the actual contents of such 
tracts lying in their respective counties, surveyed, platted and recorded, 
in the manner provided for in other cases. 

HOW LISTED AS BETWEEN TOWNS. 

65. In different towns.] § 65. The foregoing rule shall apply 
to lands lying in different towns: Provided, the county clerk shall act 
in said cases instead of the auditor. 

MAKING AND DELIVERY OP ASSESSMENT BOOKS AND BLANKS. 

66. How books to be made.] § 66. The county clerk shail 
make up for the several towns or districts in his county, in books to be 
provided for that purpose, the lists of lands and lots to be assessed for 
taxes. When a whole section, half section, quarter section or half quar- 
ter section belongs to one owner, it shall, at the request of the owner, 
or his agent, be listed as one tract; and when all lots in the same block 
belong to one owner, they shall, at the request of the owner, or his 
agent, be listed as a block. When several adjoining lots in the same 
block belong to the same owner, they shall, at the request of the owner, 
or his agent, be included in one description : Provided, that when any 
tract or parcel of real estate is situated in more than one town, or in 
more than one school, road or other district, or is situated and assessed in 
any drainage district, for drainage purposes, the portion thereof in each 
town or district shall be listed separately; and the lands in any drainage 
district shall be listed corresponding, as near as may be, to the respective 
subdivisions and descriptions in the latest assessment roll of such 
drainage district. Said clerk shall enter in the proper column, oppo 



DIY. VII.] APPOINTMENT OF ASSESSORS. 378-379 



site the respective tracts or lots the name of the owner thereof so far as 
he shall be able to ascertain the same. Said books shall contain 
columns in which may be shown the number of acres or lots improved 
and the value thereof ; the number of acres or lots not improved and 
the value thereof ; the total value and such other columns as may be 
required. [As amended June 26, 1885. 

67. Books to be by townships — When separate books for 
cities, etc.] § 67. The books for the assessment of property in 
counties not under township organization, shall be made up by con- 
gressional townships, but parts of fractional townships, less than full 
townships, may be added to full townships, at the discretion of the 
county board. In counties under township organization, said books 
shall be made to correspond with the organized townships. Separate 
books shall be made for the assessment of property and the collection 
of all taxes and special assessments thereon, within the corporate limits 
of cities, towns and villages, if ordered by the county board. 

68. Lists compared.] §68. The county clerk shall cause such 
lists to be carefully compared with the list of taxable real property on 
file in his office. 

69. Books ready by 1st May.] § 69. The county clerk shall 
cause such assessment books, and all blanks necessary to be used by 
the assessor in the assessment of real or personal property, to be in 
readiness for delivery to the assessor on or before the first day of May 
in each year. [As amended June 2, 1881. 

70. Assessors to call for books.] § 70. It shall be the duty of 
each county, town or district assessor to call on the county clerk on or 
before the first day of May, in each year and receive the necessary books 
and blanks for the assessment of property, and the failure of any 
assessor to do so shall be deemed sufficient cause to declare his office 
vacant and for the appointment of a successor. [As amended, 1881. 

71. Other lands.] § 71. If, after the delivery of such books to 
the assessor in any year, the clerk shall receive an abstract showing the 
entry of any lands or lots not contained in such books, it shall be his 
duty to furnish a list of the same to the proper assessor within five days 
after such abstract is received. 

APPOINTMENT OF ASSESSOES AND DEPUTY ASSESSORS. 

72. In counties not under township organization.] §72. 

Until provision is made by law for the election of the county assessor 
in counties not under township organization, the county board in 
said counties, shall, annually, appoint some suitable and competent 
person as county assessor, and the person so appointed shall hold 
his office for one year, subject, however, to all the fines, penalties, 



380 REVENUE. [DIY. VTL 

and removal from office, provided for in this act. A vacancy from 
any cause, in the office of assesseor, shall be filled by appointment 
by said board. [By act approved May 2, 1873, the county treas- 
urer is made ex-qfficio collector. See " Election," post, § 21. 

73. Deputies.] § 73. If any assessor, for any cause whatever, 
shall be unable to perform the duties required of him, within the 
time designated by law, he may, by and with the advice and con- 
sent of the chairman of the county board, or board of town audi- 
tors, as the case may require, appoint one or more suitable persons 
to act as deputies to assist him in making the assessment, and may 
designate the district, or portion of the township, city, village or 
town in which such deputy or deputies are authorized to list and 
assess property. Such deputy assessors shall make their returns 
to the assessor. 

OATH AND DUTIES OP ASSESSORS — ASSESSMENT OF REAL AND PER- 
SONAL PROPERTY. 
Suction. 

74. Oath. 

75. Failure to take oath— Vacancy. 

76. How real estate assessed. 

77. Other lands added. 

78. How personal property assessed. 

79. When owner, etc., sick or absent — Notice. 

80. Examination under oath — Witnesses. 

81. School district to be designated. 

82. When personalty in several districts. 

83. When assesor to fix value. 

84. Owner may require statement of valuation. 

85. Assessors to use forms, etc. 

74. Oath,] § 74. Every assessor or deputy assessor, before 
entering upon the duties of his office, shall take and subscribe the 
oath required by the constitution. (1) 

75. Failure to take oath — Vacancy.] § 75. If any assessor shall 
fail to take the oath required by this act, his office shall become 
vacant ; and in such case, or in case the office of assessor is vacant 
for any cause, the county board or town board, as the case may 
be, shall fill the vacancy by the appointment of same suitable per- 
son, who shall qualify and discharge the duties of such assessor 
till the office is otherwise filled, as required by law. 

(1) The fact that an assessor -was not sworn by the proper officer, will afford 
no ground for refusing judgment for the collection of the delinquent taxes. Sullivan ▼. State of 
Illinois, 66 III. R., 75. 



DIV. VII.] APPOINTMENT OF ASSESSORS. 381. 

76. How and when real estate assessed.] § 76. Assessors 

shall, between the first day of May and the first day of July of each 
year, actually view and determine, as nearly as practicable, the fair 
cash value of each tract or lot of land listed for taxation, and set down 
in proper columns, in the book furnished him, the value of each tract 
or lot improved, the value of each tract or lot not improved, and the 
total value. He shall also set down, in separate columns, the number 
of acres of wheat, corn, oats, meadow, and other field products, in in- 
closed pastures, orchards and woodlands, whether enclosed or not, in 
that year. [As amended June 2, 1881. 

77. Other lands added.] §77. If the assessor finds that any 
real estate subject to taxation, or special assessment, has not been 
returned to him by the clerk, or if returned, has not been described in 
the subdivisions, or manner required by section sixty-six (66) of this 
act, he shall correct the return of the clerk; and shall list and assess 
such propertv, in the manner required by law. [As amended June 26, 
1885. See § 276. 

78. How personal property assessed.] § 78. The assessor or 
his deputy shall, also, between the first day of May and July pro- 
ceed to take a list of the taxable personal property in his county, 
town or district, and assess the value thereof in the manner follow- 
ing, to-wit : He shall call at the office, place of doing business, or 
residence of each person required by this act to list property, and. 
list his name, and shall require such person to make a correct 
statement of his taxable property, in accordance with the provi- 
sions of this act; and the person listing the property shall enter a 
true and correct statement of such property, in the form prescribed 
by this act, which shall be signed and sworn to, to the extent re- 
quired by this act, by the person listing the property, and delivered 
to the assessor ; and the assessor shall thereupon assess the value 

(1) Assessors, In judging of the value of property, act judicially 5 and although 
thev may err and assess it too high, this of itself, will give a court of equity no jurisdiction to 
Interfere and restrain the collection of the tax. Porter et at. v. R. R. I. & St. L. R. R. Co., 76 111. 
R.561. 

"Where an officer is invested with power to make an assessment of property for 
taxation, and exercises such power, the assessment will be presumed to be valid until it is 
shown to be void. Munson v. Miller, 66 111. R., 380. 

If property is valued at too great a sum, or more in proportion to other property, in 
the absence of fraud, or want of power, the courts can afford no relief against the over valuation. 
Ottawa Glass Co. v. Mc Caleb etc., 81 111. R., 557. 

The courts have no power to revise the assessment of property made by the as- 
sessor, or set aside or change any value made by him, when his judgment has been honestlr 
exercised and the assessment has been made on a right basis. Spencer v. The People, 68 111. R. ,510. 

"Failure to assess a part will not vitiate taxes on propertv assessed. Dunham*. City. 
of Chicago. 55 I1L R., 357; Peck v. City of Cldcago, 56 111. R., 283; Wright v. City of Chicago, 66 111. 
R.,284. 

"When an assessor acts with a fraudulent purpose, to the injury of a tax payer, th«.* 

latter may be relieved, as fraud vitiates all acts. Repubtic Life Ins. Co. v. Pollack et at., 76 I1L 

a., sag. 



382 REVENUE. [DIV. VIL 

of such property, and enter the same in his books : Provided, 
if any property is listed or assessed on or after the first day of July, 
and before the return of the assessors's books, the same shall be 
as legal and binding as if listed and assessed before that time.(l) 

79. When owner, etc., sick or absent.] § 79. If any person 
required by this act to list property shall be sick or absent when 
the assessor calls for a list of his property, the assessor shall 
leave at the office or usual place of residence or business of 
such person a written or printed notice, requiring such person to 
make out and leave at the place named by said assessor, on or 
before some convenient day named therein, the statement or 
schedule required by this act. The date of leaving such notice, 
and the name of the person required to list the property, shall 
be carefully noted by the assessor in a book to be kept for that 
purpose. 

80. Examination nnder oath — Witness.] § 80. The assessor 
may examine, on oath, any person whom he may suppose to have 
knowledge of the amount or value of the personal property 
which the person so refusing is required to list. The assessor 
may take any proper form of action to compel the attendance of 
a witness. 

81. School district to be designated.] § 81. It shall be the 
duty of assessors, when making assessments of personal prop- 
erty, to designate the number of school district or districts in 
which each person assessed is liable for tax ; which designation 
shall be made by writing the number of the district opposite 
each assessment, in a column provided for that purpose in the 
assessment book. 

82. When property in several districts.] § 82. When the per- 
sonal property of any person is assessable in several school dis- 
tricts, the amount in each shall be assessed separately, and the 
name of the owner placed opposite each amount. [See § 23. 

83. When assessor to fix value.] § 83. In all cases of failure 
to obtain a statement of personal property, from any cause, it 
shall be' the duty of the assessor to ascertain the amount and 
value of such property, and assess the same as he believes to be 
the fair amount and value thereof. [See § 26. 

(1) The omission of tlie assessor to call on persons for a list of their taxable prop- 
erty, affords no ground for restraining the collection of the tax. DuPage County t. Jenks, 65 111. 
R., 275. 

The assessor has no power after he has accepted from the owner a list and 
valuation of his property, arbitrarily and without notice to the owner, to alter the assess- 
ment and materially increase the valuation of his property. First National Bank v. Cook et aL, 
77 111. R., 622. 

In the absence of proof to the contrary, it will be presumed that an assessment 
of property for taxation has been properly made, and the tax levied is just and proper, and this 
•esperiallv where no complaint by the party assessed has been made to the township board at 
review, oYto the county board. Beers et aL v. The People ex rel., 83 111. R., 488. 



DIV. VII.] REVIEW BY TOWN BOARD. 383- 

84. (hvner may require list of valuation.] § 84. The assessor, 

when requested, shall deliver to the person assessed a copy of 
the statement of property hereinbefore required, showing the 
valuations of the assessor of the property so listed ; which copy 
shall be signed by the assessor. 

85. Assessor to use forms.] § 85. Assessors, in the execution 
of their duties, shall use the forms and pursue the instructions 
which shall, from time to time, be transmitted to them by the 
auditor, or that may be furnished to them by the county clerk or 
other officer, in pursuance of law. 



REVIEW OF ASSESSMENT BY TOWN BOARD, IN COUNTIES UNDER TOWN- 
SHIP ORGANIZATION. 

8ECTION. 

8G. Time of meeting — Proceedings. 

87. Notice of Meeting. 

88. Failure, etc., not to vitiate assessment, except, etc. 

86. Review of assessment — time — proceedings.] § 86. In 

counties under township organization the assessor, clerk and supervisor 
of the town shall meet on the fourth Monday of June for the purpose 
of revising the assessment of property in such town. And on the 
application of any person considering himself aggrieved, or who shall 
complain that the property of another is assessed too low, they shall 
revise the assessment and correct the same as shall appear to them just. 
No complaint that another is assessed too low shall be acted upon until 
the person so assessed or his agent shall be notified in writing of such 
complaint, if a resident of the county. Any two of such officers meet- 
ing are authorized to act, and they may adjourn from day to day upon 
notifying those present of the date to which they adjourn, until they 
shall have finished the hearing of all cases presented to them. Property 
assessed after the fourth Monday of June, and all other property 
whereof the owner or his agent has made application to the town board 
to have the assessment on the same revised, as provided by this sec- 
tion, and has given notice in writing to said board that he will appeal 
from its decision to the county board, shall be subject to complaint to the 
county board and the county board shall revise and correct the assessment 
upon the same upon application of the owner or his agent, as provided 
by section 97 of this act; and if it shall appear that the same has been 
assessed higher in proportion than other lands in the same neighbor- 
hood, the county board shall revise and correct the same and make 
such reduction in said assessment as shall be just and right. [As 
amended June 17, 1891. 



584 EEVENUE. [DIY. VIL 

87. Notice of meeting.] § 87. The assessor shall cause at 
least ten days previous notice of the time and place of such 
meeting, to be given by posting notices in at least three public 
places in such town. (2) 

88. Failure not to vitiate, except, etc.] §88. The failure tc 
give such notice or hold said meeting shall not vitiate sucn 
assessment, except as to the excess of valuation or tax thereon 
shown to be unjustly made or levied. [See § 191, 280, 283. 

RETUKN OF ASSESSOR TO COUNTY CLERK. 
Section. 

89. Assessor to add up column, etc. 

90. Return— Form. 

91. Schedules and statements delivered and preserved. 

92. Books delivered to town clerk — Review of assessment. 

89. Assessor to add up columns — tabular statements] 

§ 89. The assessor shall add up and note the aggregate of each 
column in his assessment books of real and personal property, and shall 
also add in each book, under proper headings, a tabular statement, show- 
ing the footings of the several columns upon each page ; and shall add 
up and set down, under the respective headings, the totals of the several 
columns. When an assessor returns several assessment books of real 
or personal property, he shall, in addition, to the tabular statements 
herein required, return a statement in like form showing the totals of all 
the books. [As amended, 1881. 

(1) The provision requiring the assessor, town clerk and supervisor to attend 
at the time and place specified in the notice, for the purpose of reviewing the assessment is im- 
perative: and without such meeting no taxpayer can be bound by the assessment. When one 
party proved that the town clerk was not present at such meeting, held, to throw on the other 
party the burden of proving that the other two complied with the law, if it is conceded that two 
had the power to act The owner of the land, on trial of a tax title, has the right to raise ob- 
jections of this character. Hough v. Hastings, 18 111. R., 312. 

Where the assessor and town clerk met, and duly organized the board for the 
purpose of reviewing the assessments, and no person appeared before them to object, held to be 
valid. The law expressly authorizes a majority of the board to act. And even if a person 
would have the right to appear before them and object to final action without the presence of 
the supervisor, yet the entire collection of taxes for that reason, in such case cannotbe arrested. 
People v Sullivan, 43 111. R., 415. 

"W here a party whose property is assessed too high fails to apply to the asses- 
sor, town clerk' and supervisor in counties not under township organization on the 4th Monday 
of June for the purpose of reviewing the same, or to the county board if the property 
is assessed after the 4th Monday of June, he cannot have relief in a court of equity, he 
having had a complete remedy at law and failed to take advantage of the same. Adsit v. Lieb 
etal., 16 111. R.,201. 

The revenue law recognizes the fact that errors may he made and wrongs com- 
mitted in the valuations placed upon the various classes of property by assessors. It provides 
times and places where the aggrieved taxpayer may obtain relief. (Sections 86 and 97), If he 
fails to take advantage of the opportunity thus afforded he has no further redress. No State or 
local official can interfere, and in the absence of fraud or lack of power in the assessor the 
courts themselves are powerless to give relief against an excessive valuation. Opinion Auditor 
Needles, March 13th, 1878. 

(2) The failure to give the notice or hold a meeting by the assessor, supervisor, 

and town clerk, to hear complaints against assessments for taxes, or any other error or infor- 
mality in the proceedings of any of the officers connected with the assessment, levy or collec- 
tion, not affecting the suhstantial justice of the tax itself, will not, under the statute, in any 
manner vitiate the tax or assessment. Beers et al. v. The People ex rel., 83 111. R., 488. 



DIV. VII.J RETURN OF ASSESSOR TO COUNTY CLERK. 3S5 

90. Return — Form.] § 90. The assessor shall, on or before the 
first day of July of the year tor which the assessment is made, return 
his assessment books to the county clerk, verified by his affidavit, sub- 
stantially in the following form: (1) 

State of Illinois, [ 

County, S 

I, assessor of , do solemnly swear that the book to which this 

is attached contains a correct and full list of all the real property (or " personal 

property," stating the fact, as the case may be,) subject to taxation in, , 

so far as I have been able to ascertain the same ; and that the assessed value 
set down in the proper column opposite the several kinds and descriptions of 
property is, in each case, the fair cash value of snch property, to the best ol 
my knowledge and belief, (where the assessment has been corrected by a town 
board, " except as corrected by the town board,") and that the footings of the 
several columns in said book, and tabular statement returned herewith, is 
correct, as I verily believe. 

[As amended, 1881. 

91. Schedules and statements delivered, etc.] § 91. The 

assessor shall at the same time deliver to the county clerk all 
the schedules and statements of personal property which shall 
have been received by him, indorsed with the name of the per- 
son whose property is listed, and arranged in alphabetical order ; 
and the clerk shall preserve the same in his office for two years 
thereafter.(2) 

92. Books delivered to town clerk — review of assessment.] 
§ 92. The several assessment books shall be filed in the office of the 
county clerk, and there remain open to the inspection of all persons: 
Provided, that the county clerk shall, in the month of April, deliver to 
the town clerks of the several towns in the county, the assessment books 
of their respective towns for the previous year, such books to be re- 

(1) A failure of a town assessor to make return of the assessment books to the 
county clerk, on or before the first of July, of the year when the assessment was made will not 
render the assessment ii valid. Purrington et al. v. The People ex rel., 79 111. R., 11 ; Eurighi v. Tht 
People ex rel., 79 I1L R., 214. See post, g 280. 

(2) The lists under the above provision cannot lawfully be returned to the town 
clerk, even if so required by the town authorities. If they are so returned and filed by the town 
clerk, he cannot recover therefor for filing them. No obligation is thereby imposed ou the town- 
Town of Charlestown v. McCrory, 36 111. R., 456. 



386 BEVENUE. [DIV. VII. 

turned by the town clerks to the county clerk's office before the first of 
July of the same year. (3) [As amended, 1881. 

PAY OF ASSESSOES AND DEPUTY ASSESSORS. 
Section. 

93. How fixed and paid. 

94. Detailed accounts of time — Not to be paid until returns made. 

93. How fixed and paid.] § 93. The pay of assessors and 
deputy assessors shall, from time to time, in counties not under 
township organization, be determined and fixed by the county 
board, and in counties under township organization, by the town 
board of auditors. Such pay shall be for the time necessarily 
employed in making the assessment, to be paid county assessors 
and their deputies out of the county treasury, and town assess- 
ors and their deputies out of the town treasury. (1) [See "Town- 
ship Organization Act," Art. 15. " Counties," § 38, post Kev. 
Stat., ch. 53, § 36. 

94. Detailed account of time— Not to be paid until, etc.] § 94 
Assessors and deputy assessors shall make out their accounts in 
detail, giving the date of each day which they shall have been 
employed, which account they shall verify under oath. The 
assessor shall not be eutitled to compensation until he shall 



(8) The assessor alone is the person or officer who can, in the first instance, determine th» 
value of property for taxation, and no'appeal to or right of review by any tribunal, other than the 
boards mentioned in the statutes, is given. People ex rel., Gerstkemper v. lots in Ashley, 122, 111.297. 

The courts are powerless to revise an assessment or change or set aside a valuation of properly 
made by an assessor, or by the boards authorized by law to review the same, where the assessment 
has been honestly made on property subject to taxation and on the proper basis. Such assessment 
eannot be impeached or set aside, except for fraud or want of jurisdiction of the property. Ibid. 
297. 

Where a deputy assessor views the property and sets down in the proper column its fair cash 
value as determined by him, it can make no difference that he supposed his work was subject to 
review by someone else, or that his assessment would be reduced one-third in amount, and his 
statement to the owners that such reduction would be made affords no valid reason for their not 
appearing before the board of review and seeking a reduction of the valuation. Ibid. 297. 

A county board is powerless to change the assessments returned according to law, except en com- 
plaint that they are too high or too low, or by way of equalization under the statute. Ibid. 297 

The law requires that all taxable property be assessed at its fair cash value, and the fact that 
some property may be assessed at only one-third that value will not render invalid an assessment 
of other property at its cash value. Ibid. 297. 

So, the omission of the assessor to assess the property of some persons, or the assessing of the 
property of some at less than its value and that of others at Its full value, while it may cause one 
taxpayer to bear an undue portion of the public burden, will not affect the validity of his tax. Ibid. 
297. 

The fraud that will authorize the courts to interfere and declare an assessment void is such as 
affects the assessment itself. Ibid. 297. 

(1) The Board of Town Auditors may, whenever under the circumstance*. 

they think an assessor is entitled to it, allow him for the time reasonably and necessarily occu- 
pied is making the assessment after the first day of July. Opinion Att'y Gen. Edsall, Aug 18 
1873. See ante, I 76, p. 312. 

If an assessor and treasurer receive fees in excess of his compensation a* 

fixed by the county board and refuses or neglects to render an account thereof, a court of equity 
will have no jurisdiction to compel an account, there being a complete remedy at law against 
him personally or upon his official bond. County of Clinton v. Schuster, 82 111. R., 137 

* Amended, 1881. See Appendix, p. 544. 



DIY. VII.] DUTIES OF CLERK — EQUALIZING ASSESSMENT. 387 



have filed the lists, schedules, statements and books appertain- 
ing to the assessment of property for such year, in the office of 
the county clerk — the books to be accurately made and added 
up. An assessor or deputy assessor shall not be entitled to pay 
anless he has performed the labor and made return in strict 
compliance with law. 

DUTIES OF CLERK ON RETURN OF ASSESSMENT BOOKS. 

Section. 

95. Clerk to correct errors and supply omissions. 

96. Further corrections. 

95. Clerk to correct errors, etc.] § 95. The clerk, upon re- 
ceipt of the assessment books of real property, shall correct all 
errors of whatsoever kind which he may discover, and add the 
name of the owner, if known, when the same does not already 
appear, and the description of all real property which has been 
omitted by the assessor, and is liable to taxation. [See § 276. 

96. Further Corrections.] § 96. If the assessor has listed and 
assessed any real property not returned by the auditor to the 
clerk, the clerk shall immediately advise the auditor thereof, who 
shall ascertain if the same is taxable, and advise the clerk. If 
taxable, the clerk shall enter the same in the list of taxable prop- 
erty in his office ; if not, he shall correct the assessment books. 

EQUALIZATION OF ASSESSMENTS BY THE COUNTY BOARD. 

Section. 

97. At July meeting. 

97. At July meeting.] § 97. The county board, at a meeting 
to be held for the purpose contemplated in this section, on the 
second Monday in July, annually, after the return of the assess- 
ment books, shall — (1) 

(1) The board of Supervisors can equalize assessments, but have no power to 

raise the assessment of personal property beyond the amount returned by the assessor; and if 
they do so. the collection of the tax upon such raised assessment will be enjoined by a court of 
chancery. McConkey v. Smith. 73 111. R., 313 

Such board has no jurisdiction to increase the valuation of personal property for taxation, 
except such as is assessed after the fourth Monday of June, the time fixed for reviewing the 
assessment by the assessor, town clerk and supervisor. If such board attempts to increase the 
valuation of property assessed before that time, its action will be void, and the taxes levied on 
he increased valuation will be enjoined. Coolbaugh etaL v. Buck etal.,SQ 111. R., 600. 

In equalizing assessments as between townships the board of supervisors are only 
authorized to increase or diminish the aggregate valuation of real estate in any town by adding or 
deducting such sum upon the hundred dollars, as they may deem necessary to produce a just 
relation between all the valuations of real estate in the county. The word "dollars" has evi- 
dently been pccidently omitted after the word "hundred " in the fourth paragraph of the above 
Bection. The board is not authorized in this proceeding to add a certain sum to each acre of 
land in a township. If, in proceeding, the board act illegally, it will not vitiate or change the 
legal acts of the assessors. Until legally changed or vacated, their assessments are. binding on the 
tax payers. People v. Allen, 43 111. R., 4G0. 

The only power the board have over the assessment roll is, to ascertain If the 
valuation in one town or district, bear a just relation to all the towns and districts in the county, 



REVENUE. [DIV. VH. 



First — Assess all such lands or lots as have been listed by the 
county clerk, and not assessed by the assessor. Said board may 
make such alterations in the descriptions of real property as it 
shall deem necessary. 

Second — On the application of any person considering himself 
aggrieved, or who shall complain that the property of another is 
assessed too low, they shall review the assessment and correct 
the same as shall appear to be just. No complaint that another 
is assessed too low shall be acted upon until the person so as- 
sessed or his agent shall be notified of such complaint, if a resi- 
dent of the county. 

Third — To hear and determine the application of any per- 
son who is assessed on property claimed to be exempt from 
taxation. If the board shall decide that any such property i3 
not liable to taxation, and the question as to the liability of such 
property to taxation has not been previously determined, as here- 
inafter provided, the decision of said board shall not be final, 
unless approved by the auditor of public accounts ; and it shall 
be the duty of the coun f v clerk, in all such cases, to make out 
and forward to the auditor a full and complete statement of all 
the facts in the case. If the auditor is satisfied that such prop- 
erty is not legally liable to taxation, he shall notify the clerk of 
his approval of the decision of the board, and the said clerk shall 
correct the assessment accordingly. But if the auditor is satis- 
fied that such property is liable to taxation, he shall advise the 
clerk of his objection to the decision of the board, and give notice 
to said clerk that he will apply to the supreme court in either di- 
vision, specifying at what term thereof, lor an order to set aside 
and reverse the decision of the county board. Upon the receipt 
of such notice, the clerk shall notify the person making the ap- 



and if it does not, the statute authorizes them to increase or diminish the aggregate valuation of 
the real estate in any town, or district, by adding or deducting such sum upon the hundred as 
may, in their opinion be necessary to produce such relation. And in order to effect this just re- 
lation, the board must include unimproved as well as improved lands. The People ex rel. v. 
Nichols, 49 111. R., 517. 

The equalization must be made so as not to reduce the aggregate valuation of the county; 
what is taken from one town must be added to another. The board have no authority, how- 
ever, to equalize the valuation of personal property in manner as they have in regard to real 
estate ; corrections in this respect can be made on application of the party aggrieved, under sec- 
tion 13 of this article. Opinion Auditor Miner, Sept. 22, 1869. 

While the law does not allow the aggregate valuation of the county to be reduced, there is no 
prohibition against an increase to such an amount as is incidental to an equalization, and when 
the equalization is made pursuant to law and according to the best judgment of the board, it 
should be sustained. Opinion Auditor Miner, Jan. 30, 1868. 

It is thought that the board of supervisors cannot lawfully adopt the valuation made by the 
State board, for the purpose of local taxes. Opinion Auditor Miner, April 27, 1869. 

Tlie county board, may hear and. determine individual complaints against an 
assessment for taxation through a committee of its members, to whom such matters may be re- 
ferred. And if such committee give notice of the time and place of their meeting to receive 
complaints, and report their action which is approved by the board, this will be a sufficient 
compliance with the law. Beers et al. v. The People ex rel., 83 111. R., 488. 

No appeal lies to the circuit court from the decision of the board of supervisors, in reference 
to property claimed to be exempt from taxation. Worthington v. Co. qf Pike, 23 111. R., 8G3. 



DIV. VH.] REPORT OF ASSESSMENT BY CLERK TO AUDITOR. 389 

plication aforesaid. It shall be the duty of the auditor to file 
in the supreme court a certified statement of the facts, certified 
by the clerk, as aforesaid, together with his objections thereto, 
and the court shall hear and determine the matter as the right oi 
the case may be. If the board shall decide that property 30 
claimed to be exempt is liable to be taxed, and the party aggrieved 
shall. at the time pray an appeal, a brief statement in the case 
shall be made by the clerk, and transmitted to the auditor, who 
shall present the case to the supreme court in like manner as 
hereinbefore provided. In either case, the collection of the tax 
shall not be delayed thereby, but in case the property is decided 
to be exempt, the tax shall be abated or refunded. 

Fourth — It shall ascertain whether the valuations in one town 
or district bear just relation to all the towns or districts in the 
county ; and may increase or diminish the aggregate valuation of 
property in any town or district, by adding or deducting such 
sum upon the hundred as may be necessary to produce a just re- 
lation between all the valuations of property in the county, but 
shall, in no instance, reduce the aggregate valuation of all the 
towns or districts below the aggregate valuation thereof, as 
made by the assessors ; neither shall it increase the aggregate 
valuation of all the towns or districts, except in such an amount 
as may be actually necessary and incidental to a proper and fsst 
equalization. It may consider lands, town or city lots, personal 
property, and railroad property (except "railroad track" and 
"rolling stock,") separately, and determine a separate rate per 
cent of addition or reduction for each of said classes of property, 
as may be necessary to a just equalization of the ssessed value 
of said classes of property within the respective towns, and of 
the same between the several towns or districts in the county. 
If the county board of any county shall find the aggregate assess- 
ment of the county is too high or too low, or is generally so un- 
equal as to render it impracticable to equalize such assessment 
fairly, they may set aside the assessment of the whole county or 
of any township or townships therein, and order a new assess- 
ment, with instructions to the assessors to increase or diminish 
the aggregate assessment of such county or township, as the case 
may be, by such an amount as said board may deem right and 
just in the premises, and consistent with this act 

REPORT OP ASSESSMENT BY CLERK TO AUDITOR, FOR EQUALIZATION. 
Section. 

98. Report of assessment by the clerk to the auditor for equalization. 

99. Where assessments not ali in. 

98. Clerk's report to auditor,] § 98. On or before the tenth 
day of July, annually, it shall be the duty of county clerks, upon 



390 REVENUE. [DIV. VIL 

the receipt of the assessment books, to make out and transmit to 
the auditor an abstract of the assessment of property, for such 
year, showing the number, value and average value of each kind 
of enumerated property as shown by the assessment ; the value 
of each item of unenumerated property, and total value of per- 
sonal property, the length of main track, the length of side track, 
and the numbers, values and average value of each separate item 
of railroad property ; the number of acres, value and average 
value of improved lands ; the number of acres, value and average 
value of unimproved lands ; the total number of acres, total value 
and average value per acre, of all lands ; the number, value and 
average value of improved town and city lots ; the number, value 
and average value of unimproved town and city lots ; the total 
number of lots, value and average value of all lots, and the total 
value of all property, the number of acres in cultivation of wheat, corn, 
oats, meadow and other field products, in inclosed pasture, orchards 
and woodland, whether inclosed or not in that year. Said abstracts 
shall be made out on blanks, which it shall be the duty of the auditor 
to furnish the county clerks for that purpose. The values to be given 
in said abstract shall be the assessed valuations, except in the case of 
railroad property, denominated "railroad track" and "rolling stock," 
the value of which shall be given as returned by the railroad company 
to the county clerk. The county clerk shall, at the same time and ac- 
companying said abstract, furnish a detailed statement of the railroad 
property denominated "railroad track" and "rolling stock," reported by 
each road located in or through their counties. If there are any roads 
so located that have not made their reports as required by this act, the 
clerk shall report the fact, giving the name of such railroad. [As 
amended, 1881. 

99. When assessments not all in.] § 99. It shall be the duty 
of the county clerks, in case of failure of any assessor to make re- 
turn of assessment within the time specified in this act, to transmit 
a statement of the assessment in all the towns or districts from 
which returns have been received, together with a statement of 
the amount of taxable property assessed in the defaulting towns or 
districts for the previous year. 

STATE BOARD OE EQUALIZATION. (1) 

BBCTIOW. 

100. Members. 

101. Election — Term of office — Vacancy. 

102. Oath. 

103. Chairman — Secretary — Employees. 

104. Duties of secretary. 

106. Annual meeting of board. 

106. Property to be classified. 

107. Rule for equalizing personal property. 



DIV. til] state board of equalization. 391 

108. Board to assess capital stock of corporations, except, etc. 

109. Board to assess " railroad track " and " rolling stock "—etc. 

110. Capital stock of railroads and telegraphs— distribution of value, etc 

111. Lands, how equalized. 

112. Combined table — Final examination. 

113. Failure to return assessments. 

114. When equalization complete. 

115. Proceedings of board published, etc. 

116. Rooms, fuel, etc. — Compensation. 

100. Members.] § 100. The state board of equalization shall, 
at the expiration of the term of office of the members now forming 
said board, consist of one member from each congressional district 
in the state, elected as hereinafter provided, and the auditor of 
public accounts. 

101. Election— Term of office— Vacancy.] § 101. The quali- 
fied electors of each congressional district shall, at the general 
election in November, 1872, and every four years thereafter, elect 
one of their number to serve as a member of said board of equali- 
zation, who shall hold his office for four years, and until his suc- 
cessor is elected and qualified. The returns of the poll-books and 
certificates of election shall be governed by the laws regulating the 
election of members of congress ; and in case of vacancy occurring 
in said board by death, resignation or otherwise, it shall be the 
duty of the governor to appoint some person (having the qualifi- 
cations of an elector in the district in which such vacancy occurs) 
to fill the same until the next regular election for members of said 
board. [See "Elections," § 26, post 

102. Oath. § 102. Each member of said board, before entering 
upon the duties of his office, shall take the oath (or affirmation) 
prescribed by the constitution of this state. 

Tlie constitutional provision which requires the value of personal property 
for taxation " to be ascertained by some person or persons to be elected or appointed in such 
manner as the General Assembly may direct and not otherwise," does not prohibit it from creat- 
inga State Board of Equalization and investing it with power to equalize the assessment of the 
different counties, for the purpose of producing uniformity in the valuation. Adsii v. IAeb, 76 
111, R., 198. 

Jfo constitutional mandate is violated in making the State Board of Equali- 
sation the exclusive judges of the value of any and all property. Pacific Hotel Co. v. Lieb, et ol^ 
83I1LR..602. 

The increase or reduction, determined by the State Board of Equalization to be 
made on the assessment of property in any county, should be extended on the valuation as 
equalized by the board of supervisors. As to moneys and credits, it is considered that they are 
affected in precisely the same way, and to the same extent as other property by the action oi the 
State board. Opinion Auditor Miner, Oct. 3, 1867. 

The equalization law intends that the rate of deduction or addition determined 
by the State Board of Equalization, shall be applied to the assessed value of property in the 
counties, after all the corrections and equalizations have been made by the county authorities. 
The law does not require any county, town or individual to pay a specific amount as tax; the 
requirement is (and no other would be constitutional) that each person and corporation " shall 
pay a tax in proportion to the value of his or her property." and certain rates of tax are imposed 
on the valuation of all property, as assessed, corrected, and equalized. Opinion Auditor Miner, 
Nov. IS, 1868. 

The State Board of Equalization, In assessing property of corporation*, does not 
act as a board of review, as in respect to other kinds of property, but as an original 
Paci'ic Hotel Co. v. Lieb et al., 83 111, K., 602. 



392 REVENUE. [DIV. TIL 

103. Chairman— Secretary— Employees.] § 103. At the first 
meeting of said board, quadrennially, it shall organize by selecting 
one of its members as chairman, and appointing a secretary ; and 
may, from time to time, select such employees as may be deemed 
necessary. The secretary shall take the oath prescribed by the 
constitution. 

104. Duties of secretary.] § 104. It shall be the duty of the 
secretary of said board, under the direction of the auditor of pub- 
lic accounts, to compile the abstracts of assessments received from 
the county clerks into tabular statements, convenient for the use 
of the board ; which statements and the original abstracts shall be 
submitted to the board on the first day of its session in each year, 
or as soon thereafter as the board is organized. The secretary 
shall perform such duties in vacation as shall be assigned to him 
by the board. 

105. Annual meeting of board.] § 105. Said board shall as- 
semble at the state capital on the second Tuesday in the month of 
August, annually, and examine the abstracts of property assessed 
for taxation in the several counties of this state, as returned to the 
auditor, and shall equalize the assessments as hereinafter provided : 
but said board shall not reduce the aggregate assessed valuation 
in the state ; neither shall it increase said aggregate valuation, ex- 
cept in such an amount as may be reasonably necessary to a just 
equalization, and not exceeding one per cent, on such aggregate 
assessed valuation; but this rule shall not apply to railroad 
property. 

106. Property to be classified.] § 106. Said board in equali- 
zing the valuation of property as listed and assessed in the differ- 
ent counties, shall consider the following classes of property 
separately, viz : personal property, railroad and telegraph property ; 
lands, and town and city lots; and, upon such consideration, deter- 
mine such rates of addition to or deduction from the listed or as- 
sessed: valuation of each of said classes of property in each county, 
or to or from the aggregate assessed value of each of said classes 
in the state, as may be deemed by the board to be equitable and 
just — such rates being in all cases even and not fractional ; and 
such rates, as finally determined by said board, shall not be com- 
bined. 

107. Rule for equalizing personal property.] § 107. In equal- 
izing the value of personal property between the several counties, 
said board shall cause to be obtained the state averages of the 
several kinds of enumerated property, from the aggregate footings 
of the number and value of each ; and the value of the several 
kinds of enumerated property in each county shall be obtained at 
those average values ; and the value of enumerated property thus 



DIV. TIL] STATE BOARD of EQUALIZATION. 393 

obtained, as compared with the assessed value of such property 
in each county, shall be taken by said board to obtain a rate per 
cent to be added to or deducted from the total assessed value of 
personal property in each county: Provided, that whenever in the 
opinion of the board it is necessary, to a more just and equitable 
equalization of personal property, that a rate per cent, be added 
to or deducted from the value thus obtained in any one or more of 
the counties, said board shall have the right so to do ; but the rate 
per cent, hereinbefore required shall first be obtained to form the 
basis upon which the equalization of personal property shall be 
made. 

108. Board to assess capital stock of corporations, except, 
etc., — Extension of tax.] § 108. The state board of equalization 
shall assess the capital stock of each company or association, 
respectively, now or hereafter incorporated under the laws of this 
state, in the manner hereinbefore in this act provided. The 
respective assessments so made (other than of the capital stock of 
railroad and telegraph companies) shall be certified by the audi- 
tor, under direction of said board, to the county clerk of the 
respective counties in which such companies or associations are 
located, and said clerk shall extend the taxes for all purposes on 
the respective amounts so certified the same as may be levied on 
the other property in such towns, districts, villages or cities in 
which such companies or associations are located. (1.) 

109. Board to assess " railroad track " and " rolling stock n 
— Distribution of values— Extension of tax.] § 109. Said board 
shall also assess the railroad property denominated in this act as 
"railroad track" and "rolling stock;" and said board is hereby 
given the power and authority, by committee or otherwise, to 
examine persons and papers. The amount so determined and 
assessed shall be certified by the auditor to the county clerks of 
the proper counties. The county clerk shall, in like manner, dis- 
tribute the value, so certified to him by the auditor, to the county 
and to the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such "railroad track" and 
"rolling stock." And said clerk shall extend taxes against such 
values, the same as against other property in such towns, districts, 
villages and cities. 

110. Capital stock of railroads and telegraphs— Distribution 
of value— Extension of tax.] § 110. The aggregate amount of 
capital stock of railroad or telegraph companies assessed by said 



(1) It is not required that a corporation, -whose property is assessed for taxa- 
tion by the State Board of Equalization, shall be notified of the assessment or the rules adopted 
wnereby to determine the value of the property, and no riyht of appeal is given lrom the a,s.se,ss- 
menu Porter ct at. V. R. R. I. Jc St. L. R. R. Co., 76 111. K., Ml ; Adsil V. Lieb tt al., 76 11L K., 201. 



394 REVENUE. [DIV. VH. 

board shall be distributed proportionately by said board to the 
several counties in like manner that the property of railroads 
denominated "railroad track" is distributed. The amount so 
determined shall be certified by the auditor to the county olerks of 
the proper counties. The county clerk shall, in like manner, dis- 
tribute the value, so certified to him by the auditor, to the county 
and to the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such capital stock. And said 
clerk shall extend taxes against such values the same as against 
other property in such towns, districts, villages and cities. 

111. Lands, how equalized.] § 111. Lands shall be equalized 
by adding to the aggregate assessed value thereof, in every county 
in which said board may believe the valuation to be too low, such 
rate per centum as will raise the same to its proper proportionate 
value, and by deducting from the aggregate assessed value thereof, 
in every county in which said board may believe the valuation to 
be too high, such per centum as will reduce the same to its proper 
value. Town and city lots shall be equalized in. the same manner 
hereinbefore provided for equalizing lands, and, at the option of 
said board, may be combined and equalized with lands, 

112. Combined table— Final examination.] § 112. ^Vhen said 
board shall have separately considered the several classes of 
property as hereinbefore required, the results shall be combined 
into one table, and the same shall be examined, compared and per- 
fected, in such manner as said board shall deem best to accom- 
plish a just equalization of assessments throughout the state, pre- 
serving, however, the principle of separate rates for each class of 
property. 

113. Failure to return assessments.] § 113. In all cases of 
partial return from any county where the number of defaulting 
towns or districts do not exceed one-third of the whole number of 
towns or districts in the county, the board of equalization may 
estimate the valuation in the towns or districts from which returns 
have not been received, and may equalize the total valuation as in 
other cases. In cases where the defaulting towns or districts ex- 
ceed in number one-third of the whole number of towns or dis- 
tricts in the county, and in all cases of failure on the part of any 
county clerk to furnish the proper returns of the assessment of 
his county to the auditor prior to or during the meeting of the 
board of equalization, in each year, said board may, by order, 
authorize the auditor to equalize the assessment of such county 
when full returns have been received by him. 

114. When equalization completed.] § 114. When said board 
shaPl have completed its equalization of assessments, for any year, 
the diAuman and secretary shall certify to the auditor the rates 



DIY. VH.] RATES OF TAXATION. 395 

.finally determined by said board to be added or deducted from the 
listed or assessed valuation of each class of property in the sev- 
eral counties, and also the amounts assessed by said board ; and it 
shall be the duty of said auditor, under his seal of office, to report 
the action of the board to the several county clerks, immediately 
after the adjournment of said board. 

115. Proceedings of board published, etc.] § 115. A report of 
the proceedings of said board of equalization shall be published 
annually, in pamphlet form, and five thousand copies thereof 
printed, of which number each member shall be entitled to fifty 
copies, the auditor to five hundred copies, and the remainder 
thereof shall be distributed by the secretary of state to the 
several counties, in the proportion usual in similar cases. Said 
distribution shall be made by mail or express, immediately upon 
the receipt of said report from the public printer, the cost of such 
distribution to be paid by the secretary of state out of the appro- 
priation for. incidental expenses. [See Rev. Stat., ch. 127, § 29. 

116. Rooms, fuel, etc.— Compensation.] § 116. The secretary 
of state shall furnish such printing, fuel, lights and rooms as may 
be necessary for the transaction of the business of said board. 
Each member of said board shall receive for his services the 
sum of $5 per day during its sessions, and ten cents per mile for 
each mile necessarily traveled in going to and returning from 
the seat of government, to be computed by the auditor of public 
accounts, and no other allowance or emolument, directly or indi- 
rectly, for any purpose whatever, except the sum of $10 per ses- 
sion to each member, which shall be in full for postage, station- 
ery, newspapers, and all other incidentals and perquisites. The 
pay and mileage allowed to each member of said board, and the 
pay allowed to its secretaries and employees, shall be certified 
oy the chairman of the board to the auditor of public accounts, 
who shall issue his warrants on the state treasurer therefor. 
Said board may employ one page, at $2 per day; two secretaries, 
at $5 per day each ; and one janitor or doorkeeper, at $3 per 
day. Two thirds of the whole number of members shall con- 
stitute a quorum, and said board may adjourn from time to time 
until the business before it is disposed of. 

RATES OF TAXATION. 

8ECTION. 

117. Extending rates. 

117. Extending rates.] § 1j7. All rates for taxes, hereinafter 
provided for, shall be extended by the county clerk on the 
assessed valuation of property, as equalized and assessed by the 
state board of equalization. [See § 128. 



396 REVENUE. [DIV. VTU 



FOE STATE PURPOSES.(l) 
Section. 

118. How rate found, etc. 

119. State school tax. 

120. State revenues. 

118. How rate found, etc.] § 118. The governor, auditor and 
treasurer shall, annually, on the completion of the assessment 
and equalization of property, ascertain the rate per cent, re- 
f { uired to produce the amount of taxes levied by the general 
assembly. [See § 304-308. 

119. State school tax.] § 119. There shall be annually assessed 
and collected, at the same time and in the same manner as other 
state taxes, such rate of tax on the equalized valuation of the 
property of this state, as is or may be provided by the laws con- 
cerning free schools, which tax shall be denominated the " State 
school tax," and the moneys arising therefrom be distributed in 
such manner as is or may be provided by the laws of this state 
concerning free schools ; and no part of the fund raised by the 
aforesaid tax shall be diverted to or used for any other purpose 
than the support and maintenance of free schools in this state. 
[See § 304-308. 

120. State revenues.] § 120. The auditor shall, annually, 
compute and certify to the county clerks such separate rates per 
cent, as will produce the net amount of state taxes authorized to 
be levied — 

First — For revenue purposes, to be designated " Revenue fund." 

Second — For interest purposes, to be designated "Interest 
fund." 

Third — For state school purposes, to be designated "State 
school fund." 

Fourth — For such other taxes as may be required by law to be 
levied by him. 

The "Interest fund" tax shall be levied so long only as the 
same may be necessary, and shall be applied to the payment of 
interest only. [See § 304-308. 



(1) The county clerk has no discretion in acting under the orders of the board 
of supervisors, in extending taxes upon their equalization, and if he refuses to extend the tax 
upon their equalization, he does so at his peril, and can only justify such refusal on the ground 
that to do so would violate the constitution of the State. An equalization by the board of su- 
pervisors, made by arbitrarily fixing the value of improved lands in each town at a uniform 
specified valuation, is illegal, and hence, if the clerk disregards such equalization and extends 
tne tax on the assessor's return, the tax is not thereby vitiated or rendered illegal. Mix v. The 
People, 72 111. R., 241. 

No order or resolution of the county hoard is necessary to authorize the county 
clerk in levying and extending State taxes. It is his duty to do so under the statute. Chiniquy 
v. TJie People exrel., 78 111. R., 560. 

A court of equity will never restrain the extension of a tax on the tax books, 
unless it is wholly unauthorized and void in all its parts. If any portion of the tax is valid, 
the court will never interpose, until the taxes have been extended, and not then, until the tax 
payer has paid or tendered such taxes as are legal. Ottawa Glass Co. v. McCaleb, 81 111. R., 557. 



DIT. VH.] FOR COUNTY PURPOSES — TOWNS, CITIES, ETC. 397 



FOR COUNTY PURPOSES. 

S«rriON. 

121. County board to determine. 

121. County board to determine.] § 121. The county board of 
the respective counties shall, annually, at the September session, 
determine the amounts of all taxes to be raised for county pur- 
poses, the aggregate amount of which shall not exceed the rate 
of seventy-five cents on the one hundred dollars' valuation of 
property, except for payment of indebtedness existing at the 
adoption of the present state constitution, unless authorized by a 
vote of the people of the county. When for several purposes, 
the amount for each purpose shall be stated separately. (1) 

TOWNS, CITIES, ETC. 

8ECTION. 

122. Certificate of rates. 

122. Certificate of rates.] § 122. The proper authorities of 
towns, townships, districts, and incorporated cities, towns and 
villages, collecting taxes under the provisions of this act, shall 
annually, on or before the second Tuesday in August, certify to 
the county clerk the several amounts which they severally require 
to be raised by taxation, anything in their respective charters, or 
in acts heretofore passed by the general assembly of this state, 
to the contrary notwithstanding.^) [As amended by act approved 
May 3, 1873. See Kev. Stat./' ch. 24, § 111. 

(1) "Levy" as applied to a tax, imports the ascertainment of the amount to be 
raisedjjind the performance of such acts as would authorize the tax collector to proceed to col- 
lect. Handy, J., in Moore v. Foote, 32 Miss. R., 409, 479. 

The levy of a special tax for purposes not authorized by law, is void. But when 
authority exists to levy a tax to pay existing indebtedness, the levying of a tax in connection 
therewith not authorized, does not render the entire levy void j'f the authorized tax can be 
■eparated from that unauthorized. Allen, etc., v. Peoria, etc., R. R. Co., 44 111. R., 85. See also 
Briscoe v. AUiscn, 43 HI. R., 29. 

A court of equity wHl not enjoin a tax for mere errors, if it is attempted to be 
levied by an officer de facto, under authority incident to his office; but may do so if the levy is 
by one without pretense of authority or color of office, to which such right is an incident Mun- 
ton v. Minor, 22 111. R., 602. 

The board of supervisors have no authority to instruct the county treasurer to 
withhold any part of the State tax. In case of an injunction restraining the collection of tax, 
the amount of the State tax thus enjoined may be certified bv the county clerk as a separate 
item of credit, and it will be allowed by the auditor, conditionally, until the injunction case is 
iecided. Opinion Auditor Miner, June 13, 1868. 

(2) The failure of the town clerk to certify the levy of a town tax to the county 
clerk, within the time required by law, does not invalidate the tax. Thatcher v. Hie Peotle ex 
rel.. 79 I1L R., 597. 

A tax for a corporate purpose is one for the benefit of the inhabitants of the mu- 
nicipality* C. D. & V. R. R. Co. el al. v. Smith, 62 111. R., 268. 

Town officers under the township system making an appropriation to a rail- 
road company in pursuance of law, and upon the vote of the majority of legal voters of the 
town authorizing the same, are '•corporate authorities" of a municipal corporation, who are 
authorized to levy taxes under the constitution of 1848. C. D. & V. R. R. Co el al v Smith 62 
III. R., 268, 

The right of corporate or local taxation cannot be delegated hv the legislature to 
K> any but the corporate authorities. Gage ▼. Graham, 57 111. R., 144; Lee v. Rugglts, 62 111. R..427. 



398 REVENUE. [DIV. VIL 



COLLECTORS BOOKS — EXTENDING RATES. 

Section. 

123. Collectors' books. 

124. How made as to townships, cities, etc. 

125. County collector to deposit books. 

126. Rates now extended. a 

127. Extension of town, city, etc., taxes. 

128. State and county taxes. 

129. Forfeited property — Back taxes. 

130. Statement of auditor. 

131. State and county equalized rates stated. 

132. Collector's warrants. 

123. Collectors' books.] § 123. The county clerk shall, annu- 
ally, make out for the use of collectors, in books to be furnished 

by the county, correct lists of taxable property, as assessed and 
equalized. fAs amended, 1881. 

124. How made as to townships, cities, etc.] § 124. In coun- 
ties not under township organization, such book shall be made up 
by congressional townships, but parts Or fractional townships, less 
than full townships, may be added to full townships, at tne dis- 
cretion of the county board. In counties under township organ- 
ization, said books shall be made to correspond with the organ- 
ized townships. Separate books may be made for the collection 
of all taxes within the corporate limits of cities, towns and vil- 
lages. This section shall not be construed to interfere with the 
tax book provided for in this act, for the use of county collectors, 
for collecting all taxes charged against railroad property and the 
capital stock of telegraph companies. [Eepealed by act approved 
May 29, 1879. Ke-enacted, 1881. See Appendix, p. 485. 

125. Books — how prepared.] § 125. The respective county 
clerks shall cause the collector's books to be properly ruled for the 
several classes of property, providing for each class three columns for 
values, — the first to show the assessed valuation; the second to show 
the valuation as corrected and equalized by the county board; and the 
third to show the valuation as equalized or assessed by the state board 
of equalization. Said books to contain proper columns for the exten- 
sion of the several kinds of taxes, and other purposes. [As amended, 
1881. 

126. Rates— how extended.] § 126. Said clerks shall extend 
upon the assessors books the rates of addition or deduction or- 
dered by the county board and state board of equalization, in 
the several columns provided for that purpose. The rates per 
cent, ordered by the state board of equalization shall be ex- 
tended on the assessed valuation of property, as corrected and 
equalized by the county board — except, that in case of railroad proper- 
ty denominated "railroad track" and "rolling stock" said rates shall 



•IV. VII.] COLLECTORS' BOOKS — EXTENDING RATES. 399' 

be extended on the listed valuations of such designated property. In 
all cases of extension of valuations, where the equalized valuation shall 
happen to be fractional, the clerk shall reject all such fractions as may 
fall below fifty cents; fractions of fifty cents or more shall be extended 
as one dollar. [As amended, 1881. 

127. Extension of towns, cities, etc., taxes.] § 127. The said 
clerks shall estimate and determine the rate per cent, upon the 
proper valuation of property in the respective towns, townships, 
districts and incorporated cities, towns and villages in their coun- 
ties, that will produce, within the proper divisions of such coun- 
ties, not less than the net amount of the several sums that shall 
be required by the county board, or certified to them according 
to law. 

128. State and county taxes.] § 128. All state and county 
taxes shall be extended by the respective county clerks upon the prop- 
erty in their counties, upon the valuation produced by the equalization 
and assessment of property by the state board of equalization. Town, 
district, village, city and other taxes, shall also be extended against 
such" assessed and equalized valuation of property within their respec- 
tive jurisdictions. In the extension of taxes, the fraction of a cent 
shall be extended as one cent [As amended, 1881. 

129. Forfeited property— Back taxes.] § 129. In all cases* 
where any real property has heretofore been or may hereafter be 
forfeited to the state for taxes, it shall be the duty of the clerk, 
when he is making up the amount of tax due on such real prop- 
erty for the current year to add the amount of back tax, interest, 
penalty and printer's fees remaining due on such real property, 
with one year's interest at ten per cent, on all taxes heretofore 
forfeited, and twenty-five per cent, on all taxes hereafter levied and 
forfeited on the amount of tax due, to the tax of the current year, 
and the aggregate amount so added together shall be collected in 
like manner as the tax on other real property for that year may 
be collected. Provided, that the county clerk shall first carefully 
examine said list, and strike out therefrom all errors, and other- 
wise make such corrections as may be necessary with respect to 
such property or tax (see § 229). [As amended, 1879. 

130. Statement to auditor.] § 130. When the books or lists 
for the collectors are completed, the county clerk shall make a 
complete statement of the assessment and taxes charged, on. 
blanks, and in conformity to instructions furnished to him by the 
auditor. The clerk shall record said statement, and forward it, 
properly certified, to said auditor. 



400 REVENUE. [DIV. VTL 

131. State and county equalized rates stated.] § 131. It shall 
be the duty of the county clerk to make in each collector's book, 
a certificate of the rate of deduction or addition determined by 
the state board of equalization in the county to which such books 
shall pertain ; and, also, the rate of addition or deduction deter- 
mined by the county board in the town, district, city or village to 
which §uch book shall pertain. [See § 126. 

132. Collector's warrant — direction to p^y over.] § 132. 
To each collector's book, a warrant, under the hand and official seal of 
the county clerk, shall be annexed, commanding the collector to collect 
from the several persons named in said book the several sums entered 
in the column of totals opposite their respective names. The warrant 
shall direct the collector to pay over the several kinds of taxes that may 
be collected by him, to the respective officers entitled thereto, less the 
compensation for collection allowed him by law.(l) [As amended, 1881. 

QUALIFICATION OP TOWN AND DISTRICT COLLECTORS. 
Section. 

133. Bond— Oath. 

134. Bond and oath recorded — Lien of bond. 

133. Bond — Oath.] § 133. Every town or district collector, 
before he enters upon the duties of his office, and within eight 
days after he receives notice of the amount of taxes to be col- 
lected by him, shall execute a bond, with two or more securities, 
to be approved by the county board, or supervisor and town 
clerk of his town, as the case may require, in double the amount 
of such taxes, conditioned for the faithful execution of his duties 
as such collector. Signatures to such bond, signed with a mark, 
shall be witnessed, but in no other case shall witness be required. 
Said bond shall be substantially in the following form, to-wit : 



Know all men by these presents, that we, A. B., of the of 



in the county of , in the State of Illinois, as town (or district) col- 
lector, and C. D. and E. F., of the said county and state, as securities, are 
held and firmly bound unto the People of the State of Illinois, in the 
penal sum of , for the payment of which, well, and truly to be made 

(1) Where tlie law requires a collector's warrant to be signed by certain officers, 
and the warrant bears their signatures, but preceding one of the signatures, the word " counter- 
signed" appears, it is nevertheless a proper signing of the instrument, and forms no objection 
to it. The law is answered when the signatures of the officers named in the statute appear 
upon the instrument. Gurnee v. The City of Chicago, 40 111. R., 165. 

A collector's warrant confers the same authority, and performs the same office as 
a fl. fa. execution, and when regular and fair on its face, protects the officer and those acquir- 
ing rights under it, to the same extent as an execution. Hill et al. v. Figley, 25 111. R., 156. 

All the personal property of the tax payer is bound for the payment of his taxes, 
from the time the collector receives his warrant until they shall have been paid. The warrant, 
Mke an execution, operates as a lien. Hill et al. v. Figley, 23 111. R„ 418. Held, that though a tax 
was illegally levied, yet the collector, who was simply the ministerial officer of the town, to 
whom a warrant was directed, regular on its face, and which he was to collect or not at his 
peril, was not liable for the costs of an injunction restraining the collection of the tax. It seems 






DIV. Vn.J RETURN OF BOOKS — WARRANT. 401 

vc bind ourselves, our heirs, executors and administrators, firmly by these 

presents. Signed and sealed this day of , A. D., 18 — . 

The condition of the foregoing bond is such, that if the above bound A. 
B. shall perform all the duties required to be performed by him as collec- 
tor of the taxes for the year 18 — , in the town (or district) of , in the 

county of , Illinois, in the time and manner prescribed by law, 

and, when he shall be succeeded in office, shall surrender and deliver over 
to his successor in office all books, papers and moneys appertaining to his 
said office then the foregoing bond to be void : otherwise to remain in full 
force. A. B., [seal." 

C. D., [seal/ 
E. F., [seal." 

lie shall also take and subscribe an oath, to be endorsed on 
the back of the bond, substantially as follows : (1.) 

I «lo solemnly swear that I will support the constitution of the United 
States, and the constitution of the state of Illinois, and that I will faith- 
fully discharge the duties of the office of town (or district) collector accord- 
ing to the best of my ability. 

[See § 257-263. 

134. Bond and oath recorded— Lien of bond.] § 134. The 

chairman of the county board (or town supervisor, as the case may 
require,) shall, within six days thereafter, file such bond, with 
such approval indorsed thereon, in the office of the recorder, who 
shall record the same, including the oath, in a separate book to be 
provided for the purpose, and when recorded shall be filed in the 
office of the county clerk by the recorder. Said bond, when so 
filed for record, shall be a lien against the real estate of such town 
or district collector, until he shall have complied with the condi- 
tions thereof. 

DELIVERY OF COLLECTOR'S BOOKS — WARRANTS. 

Section. 

135. When delivered to collector. 

136. Collector's warrant. 

137. Distress for personal tax. 

138. How to pay over taxes collected. 

139. County clerks certificate to county collector 

135. When delivered.] § 135. The respective county clerks 
shall, on or before the twentieth day after the first day of Decem- 

lt would be otherwise if he had actually attempted to collect the tax. Drake et al. t. PhiUip$ et 
al., 40 111. R., 389. ^ y 

The payment of an assessment is not voluntarily made If the collector has a 
warrant, by virtue of which he may levy and sell: and the party who has paid the money may 
recover it of a municipal corporation ; although the assessment was illegal, the city having the 
money for its general uses. Bradford v. City of Chicago, 25 ILL R., 411. 

m A town collector's term of office begins when he take the first oath of office 
within 10 days after his election or appointment." - If he fails to take this oath, it is deemed a re- 
fusal to serve, and the vacancy may be filled by appointment People ex rel. v. CaUaghan, 83 ILL 
zu, 128. 

The county treasurer has no right to administer an oath to a township col- 
lector, and when he does, the return and affidavit of the collector thereto cannot be admittedin 
eyidence to i>ro»« the facts therein stated. People, use, etc., v. Yeasel, 84 ILL, R., 539. 



402 REVENUE. [DIV. VB. 

ber, annually, or as soon thereafter as the collectors are duly quali- 
fied, deliver to them the books for the collection of taxes ; and it 
shall be the duty of the collectors, within such time, or as soon 
thereafter as they are qualified, to call at the clerk's office and 
receive said books. The tax book, provided for collecting all taxes 
charged against railroad property, and the capital stock of tele- 
graph companies, shall be delivered to the county collector within 
the same time, annually, or as soon thereafter as he is qualified. 

The collector is forbidden to receive and the clerk to deliver the collec- 
tion books until the collector has qualified and his bond been approved. See 
sections U5 and 285, post.(l) 

136. Collector's warrants.] § 136. To each town ^r district 
collector's book a warrant, under the hand of the county clerk and 
seal of his office, shall be annexed, commanding such town or dis- 
trict collector to collect from the several persons namod in said 
town or district collector's book, the several sums of tax^s therein 
charged opposite their respective names. [See § 132. 

137. Distress for personal tax.] § 137. In all casea the war- 
rant shall authorize the town or district collector, in ?ase any 
person named in such collector's book shall neglect or refuse to 
pay his personal property tax, to levy the same by distress and 
sale of the goods and chattels of such person; and it shall require 
all payments therein specified to be made by such town or district 
collector on or before the tenth day of March next ensuing. [As- 
amended by act approved May 3, 1873. 

138. How to pay over taxes collected.] § 138. The warrant 
shall direct the town or district collector, after deducting tha com- 
pensation to which he may be legally entitled, to pay over to the 
proper officers the amount of tax collected for the support of high- 
ways and bridges, and to the supervisor of the town the moneys 
which shall have been collected therein, to defray town expenses ; 
to the proper school officers, the district school tax ; to tbe city 
or incorporated town or village treasurer, or other proper otheer,. 
the taxes or special assessments collected by him for such city or 
incorporated town or village, or others, as often and at such times 
as may be demanded by the proper officers ; and to the county col- 
lector, the county tax and the taxes payable to the state treasury 
collected by him. 

139. County clerk's certificate to county collector.] § 139. 
On the delivery of the tax books to the town or district collectors, 
the clerk shall make a certified statement setting forth the naroe of 
each town or district collector, the amount of taxes to be collated 

H) Taxes on personal property do not become a lien until the tax book* *re re- 
ceived by the collector. Opinion Att'y Gen. Edsall, March 13, 1877. 



DIV. VII.] COLLECTION DISTRICT — COLLECTOR — VACANCIES. 403 

and paid over for each purpose for which the tax is levied in each 
of the several towns or districts, cities and villages, and furnish 
the same to the county collector. 

COLLECTION DISTRICT AND WHO COLLECTOR IN COUNTIES NOT UNDER 
TOWNSHIP ORGANIZATION. 

Section. 

140. County a district— Sheriff collector. 

140. County a district— Sheriff collector.] § 140. Each county 
in this state, not under township organization, shall be a collection 
district, for the purposes of this act ; and the sheriffs of such 
counties shall be, respectively, ex-officio, district collectors of such 
collection districts. [See § 144. 

VACANCIES AND RESIGNATIONS. 

8KCTIOM. 

141. How vacancy filled— Not to exonerate former collector. 

142. Duties of appointee. 

143. Extension of time in such case. 

141. How vacancies filled— Not to exonerate former collector.] 

§ 141. If any town or district collector in this state shall refuse to 
serve, or shall die, resign or remove out of the county, district or 
town for which he was elected or appointed, or the office becomes 
vacated in any other way, before he shall have entered upon or 
completed the duties of his office, or shall in any way be prevented 
from completing the same, the county or town board, as the case 
may require, shall forthwith appoint a collector for the remainder 
of the year, who shall give the like security and be subject to the 
like penalties, and have the same power and compensation as the 
town or district collector in whose place he was appointed, and 
the county collector shall forthwith be notified of such appoint- 
ment. Such appointment shall not exonerate the former town col- 
lector oi his securities from any liability incurred by him or them. 
No resignation of a town or district collector shall be accepted, 
unless sufficient cause is shown, nor shall the person resigning be 
re-appointed to complete the collections in the same or any other 
town or district in the county. (1) 

142. Duty of appointee.] § 142. The town or district collector 
so appointed shall keep an account of all collections made by the 
former collector, so far as he can ascertain the same, and when any 
one shall prevent a receipt for taxes paid to the former collector, 
he shall mark against the amount of such taxes to whom and when 
paid. 

U; see pott, " Elections," \ 126, uote. PeupU ex rd. ▼. Cailaghan, 83 ill. R., 12B. 



l04 



REVENUE. 



[DIV. TIL 



143. Extension of time in such case.] § 143. In case of such 
appointment, the chairman of the county board, or the supervisor 
of the town, may extend the time for the collection of taxes, for a 
period not exceeding twenty days, of which extension the county 
collector shall be notified. 



COLLECTORS. 

Section. 

144. Who collectors. 

145. Bond— Oath. 

146. Approved— Recorded— Sent auditor— Lien. 

147. How otherwise approved. 

148. Approval by auditor. 

149. Discharge of sureties. 

150. When collector defaults. 

151. Death of collector. 

152. Deputy collectors. 

153. Warrants to deputy collectors. 

144. Who collectors.] § 144. The treasurers of counties under 
township organization, and the sheriffs of counties not under town- 
ship organization, shall be ex-qfflcio county collectors of their respec- 
tive counties. 

145. Bond — Oath.] § 145. Said collector shall, on or before 
the first day of December, annually, or as soon as he is elected 
and qualified, and before he enters upon the duties of his office as 
collector, execute a bond, in addition to his bond as treasurer, in a 
penal sum of at least double the amount of state taxes to be col- 
lected in the year next thereafter, with two or more securities, who 
shall be residents of the said county, and owners of real estate 
located within this state equal in value to the amount specified in 
the bond; which amount shall be determined, and which bond 
shall be approved, by the county board. Each name shall be re- 
cited, in full, in the body of the bond. The signatures to such 
bond, signed by a mark, shall be witnessed, but in no other case 
shall witness be required. Such bond shall be substantially in the 
following form, to-wit : 

Know all men by these presents, that we, A. B., collector, and C. D. 

and E. F., securities, all of the county of , and State of Illinois, are 

held and firmly bound unto the People of the State of Illinois, in the penal 

sum of dollars, for the payment of which, well and truly to be made, 

we bind ourselves, each of us, our heirs, executors and administrators, 
firmly by these presents. 

Signed and sealed, this day of , 18 — . 

The condition of the foregoing bond is such that if the above bound A.. 
B. shall perform all the duties required to be performed by him as collec- 
tor of the taxes for the year 18 — , in the county of , in the State of 

) ilinois, in the time and manner prescribed by law, and when he shall be 
feucceeded in office, shall surrender and deliver over to his successoi la 



DIV. yil] collectors. 405 

ollice all books, papers and moneys appertaining to his said office, then 
the foregoing bond to be void, otherwise to remain in full force. 

A. B., [seal/ 
C. D., [seal/ 

E. F., [SEAL/ 

He shall also take and subscribe an oath, to be indorsed on the 
back of the bond, substantially as follows :(1) 

I do solemnly swear that I will support the constitution of the United 
States and the constitution of the state of Illinois, and that I will faith- 
fully discharge the duties of the office of county collector according to 
the best of my ability. 

[See § 259-263, 285. 

146. Approved— Recorded— Sent auditor— Lien.] § 146. The 

collector's bond shall be approved by the county board, and 
shall be recorded on the records of said board, and forthwith 
mailed to the auditor by the county clerk. Said clerk shall 
attach his certificate to said bond, under the seal of his office, 
showing that it has been duly approved and recorded. Said 
bond, when approved and recorded, shall be a lien against the 
real estate of such collector until he shall have complied with 
the conditions thereof. 

147. How otherwise approved.] § 147. The chairman of the 
county board, the county judge and the county clerk shall have 
power and authority to approve the bond of the county collector 
in like manner as the county board has to approve said collec- 
tor's bond ; and said bond, when so approved, shall be subject 
to the several provisions of this act, the same as if approved by 
said board. 

148. Approval of bonds by auditor.] § 148. The collector's 
bond, when received by the auditor, and if found to be made in 
conformity to law, and the securities satisfactory, shall be filed 
in his office and the fact thereof certified to the county clerk. 
If the auditor finds said bond to be not in accordance with law, 
or if he has reason to doubt the sufficiency of the surety, he 
shall return the bond to the county clerk, who shall notify the 
collector to make a sufficient bond. If a new bond is required, 
it shall be approved and recorded and subject to the require- 
ments of this section, the same as the first bond given by the 
collector. No tax books or lists shall be placed in the hands of 
the county collector until the auditor's certificate, under the seal 
of his office, has been received by the county clerk, showing that 
the collector's bond has been received and filed in the auditor's 
office. Nothing in this section shall be construed as relieving 

(1) A collector ef taxes, although lie may not have taken an oatli of office in 
the manner prescribed by the statute, may be an officer de facto, so far as the public and third 
persons are concerned, while he retains the office, and exercises the duties of it. Guyer v. An- 
drews. 11 111. II.. 194. 



406 KEVENUE. [DIV. VIL 

the securities of a collector from liabilities incurred under a 
bond not approved and filed by the auditor. 

149. Discharge of sureties.] § 149. The securities on any 
bond given in pursuance of this act, or either of them, may, at 
any time after the execution of said bond, if they, or either of 
them, have good reason to believe that the officer in said bond 
is about to fail to comply with the conditions thereof, file with 
the county clerk a notice in writing, verified under oath, by the 
person asking to be discharged, setting forth the facts in the 
case, and asking to be released from any further liability on said 
bond ; whereupon the clerk, with whom such notice shall be 
filed, shall notify the said officer to give additional security, equal 
to the security about to be released by the county board, which 
notice may be served by the said clerk, or by any person ap- 
pointed by said board or clerk. If the officer so notified shall 
not appear and give additional security within two days after 
notification, the county board may remove him from office ; and 
in all such cases said board shall appoint some person to fill the 
vacancy occasioned by such removal, who shall execute bond, 
qualify and perform the duties required as such officer. [See 
Kev. Stat., ch. 103, § 10. 

150. When collector defaults.] § 150. If the securities on 
any collector's bond, or either of them, shall be satisfied that 
such collector is making improper use of the funds collected by 
him, or has absconded, or is about to abscond, from this state, 
whereby said securities may become liable to pay any sum or 
sums of money, it shall be lawful for said security to sue out a 
writ of attachment against the goods and chattels of such col- 
lector in like manner as he would be authorized to do if said 
collector was personally indebted to such security; and the 
money collected on any such attachment shall be paid into the 
state, county, town or city treasury, by the officer collecting the 
same, in like manner as if paid over by the collector. 

151. Death of collector.] § 151. In case of the death of any 
county collector during the time the tax books are in his hands, 
and before the time specified in this act for making settlements, 
the county clerk shall demand and take charge of the tax books. 
Said clerk shall appoint one or more competent persons to ex- 
amine said tax books ; and it shall be the duty of the persons 
so appointed to ascertain the amount remaining uncollected, and 
make out a correct abstract of the same : Provided, that should 
there be but a small portion of the taxes collected at the time 
of the death of the collector, then the amount actually collected 
shall be ascertained, and the same books used in completing the 
collections. 



DIT. VII.] MANNER OF COLLECTION OF TAXES. 407 

152. Deputy collectors.] §152. Collectors may appoint depu- 
ties by an instrument in writing, duly signed, and may also 
revoke any such appointment at their pleasure ; and may require 
bonds or other securities from such deputies, to secure them- 
selves. And each such deputy shall have like authority, in everj 
respect, to collect the taxes levied or assessed within the portion 
of the county, town, district, village or city assigned to him, 
which by this act is vested in the collector himself ; but each 
collector shall, in every respect, be responsible to the state, 
county, towns, villages, cities, districts and individuals, compan 
ies or corporations, as the case may be, for all moneys collected 
and for every act done by any of his deputies, whilst acting as 
such, and for any omission of duty of such deputy. Any bond 
or security taken from a deputy by a collector, pursuant to this 
act, shall be available to such collector, his representatives and 
securities, to indemnify them for any loss or damage accruing from 
any act of such deputy. 

153. Warrants to deputy collectors.] § 153. The county clerk, 
on being requested by any collector, shall attach a warrant, 
under his hand and the seal of his office, to any list furnished by 
such collector to his deputy, which warrant shall be in the same 
manner and form as is required in the original collector's list or 
book, except that the amount collected by such deputy shall be 
paid to the collector, who shall pay the same over to the proper 
officer or persons. 

MANNER IN WHICH TAXES ARE TO BE OOLLECTED.(l) 
Section. 

154. Kind of money receivable. 

155. How collection made. 

156. Distress for taxes. 

157. Sale of property distrained — Surplus. 

158. Removal within county. 

159. Fees on distraint. 

160. Removal from county. 

161. Collection after return to county collector. 

162. Payment on part of tracts — undivided interest. 

163. Entry of payment— Form of receipt— Evidence — Name, etc. 

154. Kind of money.] § 154. The county revenue shall be 
collected in gold and silver coin, United States legal tender notes, 
current national bank notes, county orders and jury certificates, 

(1) A court of equity will never entertain a bill to restrain the collection of a 
tax, except in cases where the tax is unauthorized by law, or assessed on property not subject to 
taxation, or where the property has fraudently been assessed too high. C. B. Sc Q. £. R. Co. v. 
Cole, et al., 75 111. R., 592. 

The court* cannot interfere to prevent the collection of taxes, unless they aw 
void, or levied without power on the part of the officers executing the revenue law ; but when 
the officers, acting under the law, transcend their powers and act without warrant of law, the 
courts may give relief. Ottawa Glass Co. v. McOaleb, etc., 81 III. R., 537. 



408 REVENUE. [DIY. VIL 

and in no other currency. The revenue for state purposes shall bo 
collected in gold and silver coin, United States legal tender notes, 
current national bank notes, and auditor's warrants, and in no 
other currency. The revenue for city purposes shall be collected 
in gold and silver coin, United States legal tender notes, current 
national bank notes, city comptrollers , city auditors', or city 
clerks' warrants or orders on the city treasurer, and in no other 
currency. State taxes levied for any special purpose other than 
to defray the ordinary expenses of the State Government, shall 
be collected in gold and silver coin, United States legal tender 
notes, current national bank notes and in no other currency. All 
other taxes shall be collected in gold and silver coin, United 
States legal tender notes and in current national bank notes and 
in no other currency unless otherwise specially provided for.(l) 
[As amended, 1877. 

155. How collection made.] § 155. Every town collector, 
upon receiving the tax book or books, shall proceed to collect 
the taxes therein mentioned, and for that purpose shall call at 
least once on the person taxed, or at his place of residence or 
business, if in the town of such collector, and shall demand pay- 
ment of the taxes charged to him on his property : Provided, 
that in counties not under township organization, it shall be the 
duty of the collector to give notice, in a newspaper published in 
the county, if any such newspaper there be, stating when and 
where he will attend in each precinct, for the purpose of receiv- 
ing taxes, and also by causing written or printed notices to be 
posted in three of the most public places in each precinct, stat- 
ing the time when, and the place where, he will be in such pre- 
cinct, for the purpose of collecting the taxes therein ; which said 
notices shall be published or posted at least ten days before the 
time fixed for the collection of such taxes, and said notices shall 
be deemed a sufficient demand for said taxes.(2) [As amended 
by act approved May 3, 1873. 



(1) The mandate of the State to Its officers, as to the kind of funds in which 
the revenue shall be collected, cannot be disobeyed. Congress has no power over the subject 
State Treasurer v. Collector of Sangamon Co., 28 111. R., 512. 

Any registered bond tax collected under levy made by the State Auditor pur- 
suant to law is declared to be a State tax by the statute and must therefore be collected in 
•' gold and silver coin, United States legal tender notes, current national bank notes, or Auditor's 
warrants, and in no other currency." Opinion Auditor Needles, March 23, 1878. 

Money, whether in the State treasury, or in the hands of the collector, is alike the 
property of the State. The People v. Miner, 46 111. R., 385. 

By the new Constitution, all taxes levied for State purposes, are required to be paid into 
the State treasury. Art 9, Sec. 7. 

(2) A mortgagor or mortgagee in possession is bound to pay the taxes on the 

mortgaged premises, the latter will be allowed therefor on foreclosure of the mortgage. Wright 
tt al. v. Langley, 36 111. R., 381 ; Moore v. Titman, 44 111. R., 367. 

A party in actual possession of lands under a contract listed in his name, is personally liable 
for the taxes. Qlancey v. Elliott, 14 HI R., 458 



)IV. Vn.] MANNER OF COLLECTION OF TAXES. 409 

156. Distress for taxes.] § 156. In case any person, company 
or corporation shall refuse or neglect to pay the taxes imposed on 
him or them, when demanded, it shall be the duty of the collector 
to levy the same, together with the costs and charges that may 
accrue, by distress and sale of the personal property of the per- 
son, company or corporation who ought to pay the same. [Con- 
fined to personal property by § 137.(1) 

An assignee ts bound, while the assets remain in his hands for administration, 
to pay the taxes assessed thereon. Ryan v. Gallatin County, 14 111. R., 82. 

A person having a life estate in lands is bound to pay the taxes thereon dur" 
ing the existence of the estate, unless exempt by the instrument creating the estate. Higgins r. 
Crosby, 40 111. R., 263 ; Waldo el al. v. Cummings et al., 45 111. R. ( 421. 

The assignee of a lease for the title of another, is bound to pay all the taxes on the 
premises during his tenancy. Prettyman v. Walston. 34 111. R., 192. 

Co-tenants are equally bound to keep the taxes paid, and one who pays all taxes 
can recover of the other for the amount with interest. Morgan et al. v. Herrick, administrator, 
etc.. et. at-., 21 111. R., 4S1 ; Checkering, et al. v. Failes, 38 111. R., 342. 

If the taxes are paid by a tenant, it will enure to the benefit of the landlord. If by a trustee, 
or cestui que trust, to the benefit of the combined legal and equitable title claimed. Colfield v. 
Furry, 19 111. R., 183. 

An administrator is not bound by law to pay taxes on the real estate left by the 
decedent. Stone et al. v. Wood. 16 111. R., 177. 

Upon the question on whose account and for whom payment of taxes has been 
made, the tax receipts therefor are not conclusive evidence. Like other receipts, they are sus- 
ceptible of explanation. Hand v. Scofitld, 43 III. R., 168 ; see case of Hichman v. Whetstone, 23 
111. R., 188. 

Ordinarily, a party of whom a tax is illegally collected, has an ample remedy at law by an 
action of trespass against the officer collecting it. or bv an action of assumpsit to recover back 
the money paid. Cook Connty v. C. B. & Q. R. R. Co., 35*111. R., 467. 

A tax ts not an ordinary debt ; it takes precedence of all other demands, and is a 
charge upon the property, without relerence to Hie matter of ownership. Dunlop v. County of 
Gallatin, 15 111. R., 9. 

A tax has been held to be recoverable by action like a debt. Ryan v. Gallatin County, 14 ILL 
R., 78; Creps v. Baird, 30 Ohio R., 277. 

(1) The remedy by distress for the collection of taxes is not necessarily exclusive. 
The same remedy may be pursued as for the collection of debts. Ryan v. Gallatin County, 14 111. 
R., 83. A note in the hands of an attorney for collection, the property of a delinquent tax 
payer, may be reached for the payment of the tax, by proceeding as in case of a debt. Opinion 
Auditor Miner, Feb. 13, 1868. 

A tax creates a lien, and takes .precedence of judgments and all other claims, and 
no property is free from levy and sale for the payment thereof. Dennis v. Maynard et al^ 15 ILL 
R., 481 ; Dunlap v. Gallatin County, 15 111. R., 9. 

Household goods are not exempt from taxation nor from being distrained and sold 
for taxes. Opinion Auditor Miner, April 18, 1867 ; Dennis v. Maynard et al, 15 111. R., 481. 

Insurance companies are required to pay the tax assessed on them, and col- 
lections are to be made by distraint and sale of personal property in the same manner as that 
of other corporations or individuals. Opinion Auditor Lippincott, Feb. 21, 1870 ; Jan. 28, 1870. 

The tax on personal property cannot be carried forward from one year to an- 
other. If the tax is not paid the property must be distrained and sold unless the tax payer be- 
comes insolvent or has absconded and no property can be found. If the tax on personal prop- 
erty liable to tax for former years was omitted to be assessed, it should be assessed for the cur- 
rent year as well as for the years for which it was liable but omitted to be assessed. Opinion 
Auditor Lippincott, Nov. 26, 1869. 

Auditor Needles has decided that, under the law as at present existing, collectors have no 
authority to seize and sell personal property for tax on real estate. Opinion of Auditor, Dec 
81, 1877. 

Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the collector, who has distrained for taxes unpaid, will not 
be liable to an action for such irregularity, which is not his fault. Exchange Bank Columbus v 
Hints, 3 Ohio St. R., 1. 

A township collector has the right to go out of his town and to any place witn- 
In his county to collect any tax, whether real or personal, assessed in his district. See g 68. 
Opinion Auditor Lippincott' Jan. 7, 1870. 

If the collector shall make a return that he could not find goods and chattels 
wb«r?on to levy and collect the amount assessed, that will be conclusive of the fact stated. If 
th« leturn is false, the officer is responsible. City of Ottawa v. Macy et al., 20 111. R., 413. 



410 REVENUE. [DIY. TO. 

157. Sale of property distrained— Surplus.] § 157. The collec- 
tor shall give public notice of the time and place of sale, and of 
the property to be sold, with the name of the delinquent, at least 
five days previous to the day of sale, by advertisements, to be 
posted up in at least three public places in the town or district 
where such sale is to be made. Such sale shall be by public auc- 
tion, and, if practicable, no more property shall be solof than suffi- 
cient to pay the tax, costs and charges due. If the property 
distrained shall be sold for more than the amount of the taxes and 
charges due, the surplus shall be returned to the person in whose 
possession such property was when the distress was made, if no 
claim be made to such surplus by any other person. If any other 
person shall claim such surplus, on the ground that the property 
sold belonged to him, and such claim be admitted by the person 
for whose tax the same was distrained, the surplus shall be paid to 
such owner. 

158. Removal within county.] § 158. In case any person 
against whom a tax shall be assessed, under the provisions of this 
act, shall have removed from one town or district to another town 
or district in the same county without paying such tax, it shall be 
lawful for the collector having the tax books in which such tax k 
charged, to levy and collect such tax of the goods and chattels oi 
the person assessed, in any town or district within said county to 
which such person shall have removed, or from property of such 
person wherever the same may be found in said county. 

159. Fees on distraint] § 159. In levying on and selling per- 
sonal property for taxes, the collector shall be governed by the same 
rules and be entitled to the same fees as constables are or may be 
for like services on executions ; but in no case shall any collector 

The collector, in collecting the tax charged upon his list, acts as a ministerial 
officer, and is protected by his warrant the same as any other ministerial officer would be in ex- 
ecuting process. The rule in such case is, that if a ministerial officer executes process, upon the 
face of which it appears that the court issuing it had not jurisdiction of the subject matter or of 
the person of the defendant, the process will afford him no protection for acts done under it. 
But if the subject matter of the suit is within the jurisdiction of the court, but there is want of 
jurisdiction of the person, the officer executing the process is not liable, unless the want of Juris- 
diction appears by the process. Therefore, where a county clerk places property, which is the 
subject of taxation, upon the tax list within the proper time and assesses the same with a tax, hi 
pursuance of the statute prescribing his duties in this respect, but without notice to the partr 
interested, the collector is not a trespasser in the collection or such tax, by reason of such want 
of notice, unless it is disclosed by the tax list and warrant, or otherwise personally known to 
the treasurer. Champaign Co. Bank v. Smith, 7 Ohio St. R., 42. 

Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the treasurer, who has distrained for taxes unpaid, will not 
be liable to an action for sud* irregularity, which is not his fault. Exchange Bank Columbus r. 
Mines, 2 Ohio St. R., 1. 

"When it becomes necessary for the collector to levy upon and sell the goods and 
chattels of any person for the collection of taxes, it will be lawful for him to sell the same at 
any time before the time he is required to pay over the money to the county treasurer, and other 
officers mentioned in his warrant, having made a levy within the proper time. Sheldon v. Van 
Buskirk, 2 Comstock R., 473. See post, \ 1 69. 

A court of equity -will enjoin the sale of the property of one man levied on bv 
the collector of taxes, for the taxes of another person. Deming ct at. v. James, 72 111. R., 79. 



DIV. TIL] MANNER OF COLLECTION OF TAXES. 411 

charge mileage, unless lie is compelled to distrain property. [See 
Rev. Stat., ch. 79,§ 88, 89 ; Kev. Stat, ch. 53, § 41, 42. 

160. Removal from county.] § 160. In case any person 
against whom taxes have been levied, under the revenue laws of 
this state, in any county, town , city or district of this state, shall 
have removed from such county, town, city or district, after such 
assessment has been made, and before the collection of the same, 
the count}- clerk, when directed by the county board, shall issue a 
warrant under his hand and seal of office, directed to any sheriff, 
coroner or constable of the county, town, city or district to which 
such person may have removed, commanding such officer to whom 
the warrant may be directed to make the amount of such tax, to- 
gether with the costs and charges that may accrue, from the per- 
sonal property of the person owing such tax — distraint and sale of 
property under this section to be in the same manner as provided 
in this act for other cases of distraint and sale of personal property. 
The taxes which may be collected under this section shall be dis- 
posed of in the manner required by this act with respect to taxes 
collected in any other manner. All other parts of this act provid- 
ing for cases of failure of officers to pay over taxes, shall apply to 
all officers, collecting taxes under this section, who fail to pay over 
and correctly account at the proper time and manner for the taxes 
collected by them. 

161. Collection after return of county collector.] § 161. The 

power and duty to levy and collect any tax due and unpaid, shall 
continue in and devolve upon the county collector and his succes- 
sors in office, after his return and final settlement until the tax is 
paid ; and the warrant attached to the collectors book, shall con- 
tinue in force and confer authority upon the collector to whom the 
same was issued and upon his successors in office, to collect any 
tax due and uncollected thereon, although such books may have 
been returned, or the tax carried forward into any other book. 
This section shall apply to all collectors books and tax warrants 
heretofore issued, upon which taxes may be due and unpaid, as 
well as those hereafter issued. [As amended, 1879. 

162. Payment on part of tract— Undivided Interest] § 162. 

The collector shall receive taxes on part of any lot, piece or par- 
cel of land charged with taxes, when a particular specification of 
the part is furnished. If the tax on the remainder of such lot or 
parcel of land shall remain unpaid, the collector shall enter 
such specification in his return, so that the part on which the 
tax remains unpaid may be clearly known. The tax may be 
paid on an undivided share of real estate. In such case the 
collector shall designate on his record upon whose individual 
share the tax has been paid. 



412 REVENUE. [DIV. VIL 

163. Entry of payment— Receipts— Evidence— Name, etc., o* 
owner.] § 1()3. Whenever any person shall pay the taxes charged 
on any property, the collector shall enter such payment in his book, 
and give a receipt therefor, specifying for whom paid, the amount 
paid, what year paid for, the property and equalized value 
thereof on which the same was paid, according to its description 
in the collectors book, in whole or in part of such description, as 
the case may be, and such entry and receipt shall bear the genuine 
signature of the collector or his deputy receiving such paymeot; and 
whenever it shall appear that any receipt for the payment of taxes 
shall be lost or destroyed, the entry so made may be read in evidence 
in lieu thereof. The collecter shall enter the name of the owner or of 
the person paying tax, opposite each tract or lot of land, when he col- 
lects the tax thereon, and the post-office address of the person paving 
said tax. [As amended, 1881. 

SWORN STATEMENTS OF COLLECTIONS TO BE MADE-PAYMENTS. 

164. Thirty day settlements with cities, etc.] § 164. Town 
and district collectors shall, every thirty days, when required to do 
so by the proper authorities of incorporated towns, cities and vil- 
lages, road and school districts, for which any tax is collected, ren- 
der to said authorities a statement of the amount of each kind of 
tax collected for the same, and at the same time pay over to such 
authorities the amount so shown to be collectod.(l) As amended 
by act approved May 3, 1873.(1) 

165. Thirty day settlements with county collector.] § 165. 

Such town and district collectors shall, every thirty days, render a 
similar account of the taxes payable to the state treasury, and of 
the county taxes, to the county collector, and at the same time pay 
over the amount of such taxes to said county collector. 

166. Local taxes to be paid over, etc.] § 166. Said town and 
district collectors shall pay over the town, road, school and other 
local taxes, as may be directed in the warrant attached to the col- 
lectors book. 

167. Final settlement for local taxes before return.] § 167. 
Each town and district collector shall make final settlement for 
the township, district, city, village and town taxes, charged in the 
tax books, at or before the time fixed in this act for paying over 
and making final settlement for state and county taxes collected by 
them. In such settlements, said collectors shall be entitled to credit 
for the amount of their commissions on the amount collected, and 
for the amount uncollected on the tax books, as may be determined 
by the settlement with the county collector. 

(1) Wlicre a collector pays scliool moneys belonging to a school district to 

any person other than the treasurer of the proper township, he will be guilty of a breach of bis 
bond, and liable to nominal damage*, although the person receiving the money, upon discos <y 
of the mistake, pays over the same to the proper school .listriet .>rai-urs, so that Mich «!Nrrict. m 
♦act loses nothing. People, it.*, etc.. v. Yra*rL M ill K. '.:•.•• 



DIV. VII.] RETURN TO COUNTY COLLECTOR. 413 



168. Duplicate receipts.] § 168. The officer to whom any such 
moneys may be paid, under the preceding sections, shall deliver to 
the collector duplicate receipts therefor. 

BETURN OF TOWN AND DISTRICT COLLECTORS TO THE COUNTY COLLECTOR. 

169. When return made.] §169. Town and district collectors 
shall return tax books, and make final settlement for the amount 
of taxes placed in their hands for collection, on or before the ten t h 
day of March next after receiving the tax book: Provided, that 
the county collector may first notify, in writing, the several towns 
or district collectors upon what day, within twenty days after the tenth 
day of March, they shall appear at his office to make final settlement, 
and at the time of making return to the county collector, each town or 
district collector in counties under township organization, shall make 
out and deliver to the county collector a detailed statement in writing of 
the amount of taxes he has been unable to collect on real estate and 
from persons charged with personal property taxes, which statement 
shall show each kind of tax, the same as in the tax book delivered to 
him by the county clerk, and shall show the number of the page of the 
tax book and the number of the line of the page on which the item 
appears to be delinquent, and in case where no taxes have been paid on 
any one page on the collector's book, the page footings of the taxes on such 
page may be copied into such statement. It shall not be necessary to 
give in the statement the description of the real property delinquent, 
nor the names of the owners thereof, nor the names of the persons 
delinquent for personal property taxes. The town or district collector 
shall add up the delinquent taxes in said statement and make a sum- 
mary thereof, setting forth the aggregate amount of each kind of tax 
and the total delinquent, in the same manner as in his warrant, and 
shall make oath that said statement is true and correct. [As amended, 
1881. 

170. Form of return as to personal tax.] § 170. If any town 
or district collector shall be unable to collect any tax on personal 
property, charged in the tax book, by reason of the removal or 
insolvency of the person to whom said tax is charged, or on account 
of any error in the tax book, he shall, at the time of returning his 
book to the county collector, note, in writing, opposite the name 
of each person charged with such tax, the cause of failure to col- 
lect the same, and shall make oath that the cause of delinquency 
or error noted is true and correct, and that such sums remain due 
and unpaid, and that he has used due diligence to collect the same, 
which affidavit shall be entered upon said collectors book, and be 
signed by the town or district collector.(l) [As amended, 1879. 

(1) The affidavit of the town collector as to delinquent personal property, where the 
tot shows the cause of inability to collect to have been insolvency or removal, is final when 



414 KE VENUE. [DIY. VIL 

171. Credits, etc.] § 171. Upon the filing of said book, the 
county collector shall allow the town or district collector credit for 
the amount of taxes therein stated to be unpaid, and shall credit 
the same to the several funds for which said tax was charged. 
When the county collector makes settlement with the county 
board, such statements shall be sufficient voucher to entitle him 
to credit for the amount therein stated, less such amount thereof, 
if any, that may have been collected by him. In no case shall 
any town or district collector, or county collector, be entitled to 
abatements for personal property tax until the statement and affi- 
davit are filed. [As amended, 1879. 

172. Form of return as to real estate.] § 172. Each town or 
district collector, at the time of returning his tax book to the 
county collector, shall make affidavit, to be entered upon such book 
and subscribed by the collector, that the taxes charged against 
each tract or lot, or assessment of personal property remain due 
and unpaid at the date of making such affidavit in each case where 
there does not appear in the proper column the amount of such 
taxes as having been paid to such collector, and the date of pay- 
ment and the name of any person as having paid the same; which 
affidavit shall be prima facie evidence of the facts therein stated. 
[As amended, 1879. 

173. To note what personal tax can be collected from real 
estate.] § 173. Each town or district collector shall particularly 
note, in his returns to the county collector, all cases of personal 
property tax that he was unable to collect, which can be made 
from real estate of the person owing such tax. 

174. Suit on bond.] § 174. If the town or district collector 
shall fail to appear and make final settlement, or pay over the 
amount in his hands, when required in this act, the county collec- 
tor shall forthwith cause the bond of such collector to be put in 

there is no real estate. Opinion Auditor Miner, Jan. 20, 1868; City of Ottawa v. Macy, 20 I1L 
R.,423. 

Town collectors can make n© corrections or deductions from valuations made 
by the assessor on real or personal property. Inability to collect on account of removals or in- 
solvency of the tax payer are the only causes entitling the collector to a credit for the amount 
of such tax on personal property, in his settlement with the county collector. Opinion Auditor 
Lippincott, Feb. 7, 1870. 

Assessment of personal property creates no lien on the property ; a lien is created 
by the delivery of the collectors books. Hill et al. v. Figley, 23 111. R., 418. It is not thought that 
a collector can levy on the goods owned jointly or as a company for the tax of individuals. The 
tax is a debt due from the person assessed, and is not discharged by the collector's return, delin- 
quent. The board of supervisors have authority to cause prosecution for collection. The cause 
of inability to collect personal property tax must be shown in each case, and if the affidavit 
thereto is made according to law, the county treasurer has no discretion, but must allow the 
credit. City of Ottawa v. Macy, 20 111. R., 413. The collector should be allowed time to complete 
any proceedings commenced under his warrant, before the time of its expiration. Opinion Aud- 
itor Lippincott, Feb. 17, 1869 ; Opinion Auditor Miner, May 11, 1868. 

It is not essential to the jurisdiction of the court to render judgment for taxes 
against delinquent lands, that the town collector should make and return to the county collector 
an affidavit, showing what taxes are delinquent; the delinquent list reported by the county 
collector to the county clerk, is prima facie evidence of delinquency upon which, unless over- 
come by other evidence the court may render judgment. Fisher v. The Feojie, 84 111. R., 491. 



DIV. Til.] RETURN OF DELINQUENT ASSESSMENTS. 415- 

suit, and recovery may be had thereon for the sum due, for al] 
taxes and special assessments, and twenty-five per cent, thereon 
as damages, with costs of suit. 

175. Satisfaction piece.] § 175. Upon the final settlement of 
the amount of taxes directed to be collected by any collector, in 
any of the towns or districts in this state, the county collector 
shall, if requested, give to such collector, or any of his securities, 
a satisfaction piece in writing. 

176. Satisfaction piece may be recorded— Effect.] § 176. 
Such satisfaction piece may be recorded in the recorder's office, 
and when so recorded shall operate as a discharge of the securities 
and the lien upon the property of the collector, except as to all suits 
commenced upon such bond within three years after the recording 
of the same. 

177. Delinquent defined.] § 177. All real estate upon which 
taxes remain due and unpaid on the tenth day of March, annually, 
or at the time the town or district collector makes return of his books 
to the county collector, shall be deemed delinquent ; and all such 
due and unpaid taxes shall bear interest after the first day of May 
at the rate of one per cent, per month until paid or forfeited ; parts 
or fractions of a month shall be reckoned as a month, and all such 
collections on account of interest shall be paid into the county 
treasury to be used for county purposes. [As amended, 1879. 

RETURN OP DELINQUENT SPECIAL ASSESSMENT. 
Section 

178. To county collector — His duties — Transfer of amounts. 

179. Demand for assessment when tax paid. 

178. To county collectors— His Duties— Transfer of amounts.] 

§ 178. When any special assessment made by any city, town or 
village, pursuant to its charter, or by any corporate authorities, 
commissioners or persons, pursuant to law, remain unpaid in 
whole or in part, return thereof shall be made to the county col- 
lector on or before the tenth day of March next after the same 
shall have become payable, in like forms as returns are made for 
delinquent land tax. County collectors shall collect, account 
for, and pay over the same to the authorities or persons having 
authority to receive the same, in like manner as they are required 
to collect, account for and pay over taxes. The county collector 
may, upon return of delinquent special assessments to him, trans- 
fer the amounts thereof from such returns to the tax books in 
his hands, setting down therein, opposite the respective tracts, 
or lots, in proper columns to be prepared for that purpose, the 
amounts assessed against such tract or lot [As amended by act 
approved May 3, 1873. See § 279, 299. 



416 REVENUE. fDIV. VIL 



179. Demand for assessment when tax paid.] § 179. When 
any special assessment is returned against property, the taxes 
upon which shall have been paid to the town or district collector, 
it shall be the duty of the county collector to cause demand to 
be made for the payment of such special assessment, or a notice 
thereof to be sent by mail, or otherwise, to the owner, if his 
place of residence is known. The certificate of a collector that 
such demand was made, or notice given, shall be evidence 
thereof. 



COUNTY COLLECTORS RECEIPTS — POWERS. 

Section. 

180. Form of receipt. 

181. Powers to collect 



180. Form of receipt.] § 180. On the application of any per 
son to pay any tax or special assessment upon any real property, 
it shall be the duty of the county collector to make out to such 
person a receipt, in which shall be noted all taxes and assess- 
ments upon such property returned to such collector, and not 
previously paid. [As amended, 1881. 

181. Powers to collect.] § 181. County collectors*shall have 
the same powers, and may proceed in the same manner, for the 
collection of any tax on real or personal property, as town or 
district collectors ; and if in any town or collection district the 
office of town or district collector is or shall become vacant, and 
such vacancy shall not be filled on or before the tenth day of 
March next following such vacancy, or if in any town or collec- 
tion district the books for the collection of taxes, for any reason, 
have not been, or shall not be, delivered to the town or district 
collector, on or before the tenth day of March in any year, the 
county clerk shall deliver all such collectors books to the county 
collector of such county having annexed to each of such books 
a warrant under the hand and official seal of the county clerk, 
commanding such county collector to collect from the several 
persons named in such books, the several sums of taxes therein 
charged opposite their respective names, and authorizing him in 
case any person named in such collectors books shall neglect or 
refuse to pay his personal property tax, to collect the same by 
distress, and sale of the goods and chattels of such person. It 
shall thereupon be the duty of such county collector to collect 
and pay over all taxes, assessments, and other charges shown in 
such books and to do all acts, required of him by law, in like 



. 



CTV. VII. ] ADVEKTISEMENT FOR JUDGMENT AND SALE. 417 

manner as if such taxes, assessments, and other charges, had 
been duly returned delinquent by a town or district collector. 
The collectors books so delivered to the county collector, by the 
county clerk, shall, for all purposes, in all subsequent proceed- 
ings, be used in the same manner, and have the same force and 
effect as if said books were delivered to the town or district col- 
lectors, and duly returned by them, as provided by law. When 
any injunction restraining the collection of taxes shall be dis- 
solved after the tax books shall have been returned to the county 
collector, such taxes or the portion thereof, upon which such in- 
junction shall have been dissolved, shall be paid to the county 
collector, who shall have the same power and shall proceed in 
the same manner for the collection of such taxes, as though the 
same or such portion thereof had never been enjoined. [As 
amended, 1879. 

ADVERTISEMENT FOR JUDGMENT AND SALE. 

Section. 

182. Advertisement. 

183. Proceeding against real estate for personal tax. 

184. Figures, etc., used — Advertisement, etc. 

185. When application for judgment made, etc. 

186. Copies of papers containing advertisement. 

187. Error in advertisement. 

188. When delinquent list tiled — Form of. 

189. Tax may be paid before sale. 

190. Payments reported — List corrected. 

182. Advertisement.] § 182. At any time after the first day 
of April next after such delinquent taxes and special assess- 
ments on lands and lots shall become due, the collector shall 
publish an advertisement, giving notice of the intended applica- 
tion for judgment for sale of such delinquent lands and lots, in 
a newspaper published in his county, if any such there be, and 
if there be no such paper printed in his county, then in the near- 
est newspaper in this state to the county seat of such county. 
Said advertisement shall be once published at least three weeks 
previous to 'the term of the county court at which judgment is 
prayed, and shall contain a list of the delinquent lands and lots 
upon which the taxes or special assessments remain due and 
unpaid, the names of owners if known, the total amount due 
thereon, and the year or years for which the same are due. Said 
collector shall give notice that he will apply to the county court, 
at the .... term thereof, for judgment against said lands and 
lots for said taxes, special assessments, interest and costs, and 
for an order to sell said lands and lots for the satisfaction thereof ; 
and shall also give notice that, on the .... Monday next suc- 
ceeding the day fixed by law for the commencement of such term 



418 KEYENUE. [DIY. VD 

of the said county court, all the lands and lots for the sale of 
which an order shall be made, will be exposed to public sale at 
the building where the county court is held in said county, for 
the amount of taxes, special assessments, interest and cost due 
thereon ; and the advertisement published according to the pro- 
visions of this section shall be deemed to be sufficient notice of 
the intended application for judgment and of the sale of lands 
and lots under the order of said court. Where the publisher of 
any paper that may have been selected by the collector shall be 
unable or unwilling to publish such advertisement, the collector 
shall select some other newspaper, having due regard to the cir- 
culation of such paper. (1) [As amended by act approved May 
3, 1873. See § 185-7. 

(1) The delinquent tax list is not required by law to be published in the paper 
having the largest circulation in the county, or out of it. Opinion Auditor Miner, March 11, 
1868. 

The publication must be made precisely as directed by law. Scammon v. City of Chicago, 40 
111. R., 146. 

Application lor judgment against delinquent lands, and for an order of sale, may 
be made to the county court at the June term. The collector is not compelled to make it at the 
May term. The People ex rel. v. Nichols, 49 111. R., 517. 

A notice which omits to state that an order for sale will be applied for when the application 
for judgment is made, is insufficient and subsequent proceedings are void. Charles v. Wangk, 
35 111. R., 315. 

The statute form of advertisement must be strictly followed. The omission of 
the title of the collector after his name signed thereto, was held to be fatal. Spear v. Bitty, 7 Vt. 
R., 282. Where the notice was for " repairing and building bridges," and the tax authorized was 
for making and repairing roads and building bridges, it was held insufficient. Charles v. Waugk, 
35 111. R., 315. 

It is not necessary to specify in detail the several classes of tax in the advertisements of delin- 
quent lands; this, however, does not apply to the list to be filed with the clerk, or the record for 
judgment, but to the advertisement only. Opinion Auditor Miner, March 2, 1867. 

To give the court jurisdiction it is not necessary that the collector's notice should 
rpecify the first day of the term of the court to which application is made, and by authority or 
section 26 of this act, a discretion is given to the collector to select the term of court at which he 
will make application for judgment. Parks et al. v. Miller, Treasurer, etc., 48 111. R., 360. 

The law contemplates a pertinent description of the land in the advertisement of 
sale. It should be so described that the owner may know that the tax on his land is unpaid, 
and that purchasers may know the precise land intended. A description as 485 acres of a cer- 
tain tract named, without location, is insufficient. A description as 150 acres, part of section 36, 
northwest corner, is too indefinite and defective. A description as 60 acres, part of the north 
half of sec. 13, is too vague and uncertain. A description as % of block 4, in etc., is void for un- 
certainty. A description as lot 11, block 20, Roberts & RandalFs addition, with no other descrip- 
tion, except that the notice was headed "Auditor's Office, Ramsay County, Minn., St. Paul, De- 
cember 8, 1862," is insufficient. A sale by such descriptions would confer no title. Douglas v, 
Dangerfield, 10 Ohio R., 152 ; Stewart v. Aten, 5 Ohio R„ 257 ; Lafferty v. Byers, 5 Ohio R., 558 ; 2 I<L. 
287 ; 3 Id., 272; Treon v. Emerick, 6 Ohio R., 391 ; Burchard v. Hubbard, 11 Ohio R., 316 ; BidweU v. 
Coleman, 11 Minn. R., 78 ; BidweU v. Webb, 10 Minn. R., 59. 

The county collector has no authority to advertise delinquent lands in subdivisions different 
from the assessment. Citing Blackwell on Tax Titles. 330. Opinion Att'y Gen. Cole, vol. 1, p. 
892. 

Where a lot of land is listed for taxation, together with eight others, and so advertised for sale, 
but the assessment of tax is one aggregate sum on all, a separate sale and conveyance of them 
is unlawful and confers no title. Wiley v. Scoville, 9 Ohio R., 43. 

An omission of the record to show that a copy of the notice of an application 
for judgment against lands and lots, for taxes due thereon, is filed as a part of the records of the 
court, is fatal to the application. The filing of such copy is an essential part of the necessary 
foundation for the judgment sought. People ex rel. v. The owners, etc., 82 111. R., 408. 

A certificate of publication stating that " the foregoing was duly published in the 
Peoria Democratic Press," etc., immediately following the tax list, will be held to refer to such 
tax list, and it will be presumed that the paper was a newspaper. Jackson v. Cummings, 15 111. 
R.,451. 

The law in relation to change of venue and trial hy Jury has no application t» 
proceedings for judgment against delinquent lands. Mia v. The People ex reL, 86 111. R., 812. 



DTY. VH.] ADVERTISEMENT FOR JUDGMENT AND SALE. -£19 

183. Proceedings against real estate for personal tax.] § 183. 

When it becomes necessary to charge the tax on personal prop- 
erty against real property, the county collector shall select for 
that purpose some particular tract or lots of real property owned 
by the person owing such personal property tax ; and in his ad- 
vertisement for judgment and sale, shall designate the particular 
tract or lots of real property against which such personal prop- 
erty tax is charged, and in the list filed for judgment, the same 
facts shall be shown, and the court shall take cognizance thereof, 
awu give judgment against such tract or lots of real property, for 
such personal property tax.(l) [See § 255. 

184. Figures, etc., u?H— Advertisement, etc.] § 184 In all 

advertisements for the sale of lands and lots for taxes or special 
assessments, and in entries required to be made !»*- J he clerk of 
the court or other officer, letters, figures and characters may be 
used to denote townships, ranges, sections, parts of sections, lots 
or blocks, or parts thereof, the year or the years for which the 
taxes were due, and the amount of taxes, special assessments, 
interest and costs ; and the whole of the advertisement shall be 
contained in one edition of such newspaper and its supplement, 
if such supplement is necessary : Provided, that nothing contained 
in this section shall prevent the county collector from subse- 
quently advertising and obtaining judgment on lands or lots that 
may have been omitted through no fault of the collector, or that 
may have been erroneously advertised or described in the first 
advertisement. 

185. When application for judgment made, etc.] § 185. All 
applications for judgment and order of sale for taxes and special 
assessments on delinquent lands and lots shall be made at the 
June term of the county court. If, from any cause, the court 
shall not be holden at the term at which judgment is prayed, the 
cause shall stand continued ; and it shall not be necessary to re- 
advertise the list or notice required by law to be advertised before 
judgment and sale, but at the next regular term thereafter the 
court shall hear and determine the matter ; and if judgment is 
rendered, the sale shall be made on the Monday specified in the 
notice, as provided in section 182 — such Monday to be fixed by 
the county collector in the notice. If, for any cause, the collector 

The collector Is not bound to prove, on an application for judgment against 
delinquent lands, that the land was regularly assessed, or make any proof of the acts of the 
assessor. It will be presumed the assessor and all other officers did their duty. If any objec- 
tions exist, it is for the land owner to show them. Mix v. The People ex rcl., b6 111. R., 812. 

On application for judgment, It Is no defense that the property was valued too 
&igh, when it was not lraudently done. Spencer v. The People, 68 111. R., 51U. 

(1) Pergonal property tax when added to real estate becomes a part of the tax 
charge upon such real estate and must so appear in the " delinquent list." Opinion Auditoff 
KKXDLE8, Ma5 7, 1878. 



420 REVENUE. [DIV. VII. 

is prevented from advertising and obtaining judgment to said term it shall 
be held to be legal to obtain judgment at any subsequent term of said 
court; but if the failure arises by the county collector's not complying 
with any of the requirements of this act, he shall be held on his official 
bond, for the full amount of all taxes and special assessments charged 
against him: Provided, that any such failure on the part of the county 
collector shall not be allowed as a valid objection to the collection of any 
tax or assessment, or to rendition of a judgment against any delinquent 
lands or lots, included in the application of the county collector: 
And, provided, further, that on the application for judgment, at such 
subsequent term, it shall not be deemed necessary to set forth or estab- 
lish the reasons of such failure. And, provided, further, that in counties 
where probate courts have been or may hereafter be established it shall 
be lawful to make such application for judgment and order of sale to the 
May term of the county court. [As amended June 26, 1895.] 

186. Copies of paper containing advertisement.] § 186. The 
printer, publisher, or financial officer or agent of the newspaper 
publishing the list of delinquent lands and lots, shall transmit, 
by mail or other safe conveyance, to the collector, four copies of 
the paper containing . said list, to one of which copies he shall 
attach his certificate, under oath, of the due publication of the 
delinquent list for the time required by law (which copy shall be 
presented by the collector to the county court at the time judg- 
ment is prayed), and said copy shall be filed as part of the rec- 
ords of said court. Upon receipt of said papers, and on demand 
being made, the collector shall pay to the printer the amount of 
the fees allowed by law for publishing said list and notice ; and 
it shall be his duty to file one copy of said paper in his office, and 
deliver one copy to the auditor, and one copy to the state treas- 
urer, who shall file and safely preserve them it their respective 
offices.(2) [See Kev. Stat., ch. 53, § 22. 

187. Error in advertisement.] § 187. In all cases where there 
is an error in the advertised list, the fault thereof being the print- 

(1) The collector may apply for judgment against delinquent lands at the May 

Terra, and if from any cause, it is not made, or the judgment recovered, at that term, he may 
apply at any subsequent term, and he may fill the first blank in his notice, given in Sec. 182 of 
the Revenue Law, with the term, to which he makes the application, and the second blank 
with the Monday on which the sale is to be made. Beers etal v. The People exrel.,83 111. R., 488 

(2) An affidavit of the printer of a newspaper of the publication of the delin- 

Suent list, and notice of applying for judgment properly sworn to, which states the day when 
le publication was made, and the paper in which the list and notice were inserted, "will be 
sufficient proof of publication to confer jurisdiction on the court to render judgment. Buck v. 
The People, 78 111. R., 560. 

A certificate of the publisher of a newspaper sworn to, showing a state of facta 
which meets the requirements of the law as to the publication of notice of an application for 
judgment for taxes against delinquent lands, is sufficient, though it may not be in the precise 
words of the statute. Fisher v. The People, 84 111. R., 491. 

When the delinquent list is placed in the hands of the printer by the collector, 
he is authorized to charge and collect the printers fee provided for by law, although the owner 
of land may offer to pay the taxes before the paper containing the list is actually published. 
Thatcher v. The People, 79 111. R., 597. 



«OIV. Vn.J ADVERTISEMENT FOR JUDGMENT AND SALE. 421 

•er's, which prevents judgment from being obtained against any 
tracts or lots, or against all of said delinquent list, at the time 
stated in the advertisement that judgment will be applied for, th*> 
printer shall lose the compensation allowed by this act, for such 
erroneous tracts or lots, or entire list, as the case may be. 

188. Delinquent list— Form.] § 188. The collector shall tran- 
scribe into a book, prepared for that purpose, and known as the tax, 
judgment, sale, redemption, and forfeiture record, the list of delin- 
quent lands and lots, which shall be made out in numerical order, 
and contain all the information necessary to be recorded, at least 
five days before the commencement of the term at which applica- 
tion for judgment is to be made ; which book shall set forth the 
name of the owner, if known ; the proper description of the land 
or lot, the year or years for which the tax or special assessments 
are due ; the valuation on which the tax is extended ; the amount 
of the consolidated and other taxes and special assessments ; the 
costs and total amount of charges against such land or lot. Said 
book shall also be ruled in columns, so as to show the amount paid 
before the rendition of judgment ; the amount of judgment, and a 
column for remarks ; the amount paid before sale and after the 
rendition of said judgment, the amount of the sale, amount of in- 
terest or penalty, amount of cost, amount forfeited to the state, 
date of sale, acres or part sold, name of purchaser, amount of pale 
and penalty, taxes of succeeding years, interest and when paid, 
interest and cost, total amount of redemption, date of redemption, 
when deed executed by whom redeemed, and a column for remarks, 
or receipt, of redemption money. [As amended, 1879. 

189. Tax may be paid before sale.] § 189. Any person owning 
or claiming lands or lots upon which judgment is prayed, as pro- 
vided in this act, may, in person or by agent pay the taxes, special 
assessments, interest and costs due thereon, to the county collector 
of the county, in which the same are situated, at any time before 
Bale. [As amended, 1879. 

190. Payments reported— List corrected.] § 190. On the first 
day of the term at which judgment on delinquent lands and lots is 
prayed, it shall be the duty of the collector to report to the clerk 
all the lands, or lots as the case may be, upon which taxes and 
special assessments have been paid, if any, from the filing of the list 
mentioned in section one hundred and eighty-eight up to that time ; 
and the clerk shall note the fact opposite each tract upon which 
such payments have been made. The collector assisted by the clerk, 
shall compare and correct said list, and shall make and subscribe 
an affidavit, which shall be as nearly as may be, in the following form: 

I, , collector of the county of , do solemnly swear (or affirm, 

as the case may be,) that the foregoing is a true and correct list of the de- 



422 REVENUE. [DIV. YTL 



linquent lands and lots within the county of , upon which I have 

been unable to collect the taxes (and special assessments, interest, and 
printer's fees, if any,) charged thereon, as required by law, for the year or 
years therein set forth ; that said taxes now remain due and unpaid, as I 
verily believe. 

Said affidavit shall be entered at the end of the list, and signed 
by the collector.(l) [As amended, 1879. 

JUDGMENT. 

6ECTI0N. 

191. Proceedings by court. 

192. Appeals. 

193. Proceedings for sale in appeal cases. 

191. Proceedings by court] § 191. The court shall examine 
said list, and if defense (specifying, in writing, the particular cause 
of objection) be offered by any person interested in any of said 
lands or lots, to the entry of judgment against the same, the court 
shall hear and determine the matter in a summary manner, with- 
out pleadings, and shall pronounce judgment as the right of the 
case may be. The court shall give judgment for such taxes and 
special assessments and penalties as shall appear to be due, and 
such judgment shall be considered as a several judgment against 
each tract or lot, or part of a tract or lot, for each kind of tax or 
special assessment included therein; and the court shall direct the 
clerk to make out and enter an order for the sale of such real 
property against which judgment is given, which shall be substan- 
tially in the following form :(2) 

(1) A collector's report of delinquent lands, which shows that he was collector 
of taxes for a certain year, and that he had not been able to collect the taxes due on the lands in 
the report mentioned, sufficiently shows for what year the taxes were levied. Karnes v. The 
People, 73 111. R., 274. 

The omission of a tract of land or lot from the collector's return of delinquent 
lands, will not defeat the whole tax. C.&N. W. R. R. Co. v. The People, ex rel., Miller, 83 111. 
R.,467. 

Where a statute requires the tax list to he verified by an oath " made and sub- 
scribed," this means an oath duly certified in writing, and the absence of it is fatal to the pro- 
ceedings. Yenda v, Wheeler, 9 Texas R., 408. 

A return or report by the collector of taxes before the sitting of the court to which It Is by law 
directed to be made, will be good. Jackson v. Cummings, 15 111. R., 450. 

The provision requiring the affidavit of the collector to be entered at the bottom of the record, 
would probably be answered if entered in the record, although not exactly or technically at the 
bottom. Winder y. Sterling, 7 Ohio R., 2 post, 190. 

(2) A Judgment for taxes, which fails to show the amount of taxes for which 

it is rendered, is fatally defective. The use of numerals, without some mark or word indicating 
for what they stand, is insufficient, and cannot be explained by referring to other judgments 
entered in a corresponding manner at different times. Lane v. Bommelmann, 21 111, R., 143; 
Eiston et al. v. Kennicott et al., 46 III. R.. 189 ; Chickering et al. v. Failes et al., 38 111. R., 342. 

Where a precept and judgment is referred to, to sustain a tax sale, the amount should defi- 
nitely appear in the judgment An error in the precept might be corrected ; but uncertainty as 
to judgment is fatal. If the judgment is for different taxes, there should be certainty as to 
each. Eppinger v. Kirby, et ux„ 23 111. R., 521. 

A specific or general judgment for cost in a suit for taxes, as In ordinary cases, 
is good. Jackson v. Cummings, 15 I1L R., 452 ; Merritt et al. v. Thompson, 13 111. R., 727. 

Judgment can be rendered only for the amount specified in the collector's notice. The Peopl* 
ex reL Y. Nictiols, 49 I1L R^ 517. 



DR. VII.] JUDGMENT. 423 



Whereas, due notice has been given of the intended application for a 
judgment against said lands and lots, and no sufficient defense having 
been made, or cause shown why judgment should not be entered against 
said lands, and lots, for taxes (special assessments, if any), interest, penal- 
ties and costs due and unpaid thereon for the year or years herein set forth, 
therefore it is considered by the court that judgment be and is hereby 
entered against the aforesaid tract or tracts, or lots of land, or parts of 
tracts or lots, (as the case may be,) in favor of the People of the State of 
Illinois, for the sum annexed to each, being the amount of taxes (and 
special assessments, if any), interest, penalties and costs due severally 
thereon ; and it is ordered by the court that the said several tracts or lots 
of land, or so much of each of them as shall be sufficient to satisfy the 
amount of taxes (and special assessments, if any), interest, penalties and 
costs annexed to them severally, be sold as the law directs. 

Said order shall be signed by the judge. In all judicial pro- 
ceedings of any kind, for the collection of taxes and special 
assessments, all amendments may be made which, by law, could 
be made in any personal action pending in such court, and no 
assessment of property or charge for any of said taxes shall be 
considered illegal on account of any irregularity in the tax list or 
assessment rolls, or on account of the assessment rolls or tax lists 

The want of" the dollar mark in the assessment roll, to designate the amount of 
the valuation or the taxes, will not render the assessment or the collector's warrant invalid and 
Illegal. EUton et al. v. Kennicott et al., 46 111. R., 189. 

A judgment cannot be rendered for taxes, a part of which are shown by the record to be il- 
legal. Campbell et al. v. Peoper, 41 111. R., 454. 

Where material omissions occurred in the record of* a judgment, a correction at * 
■subsequent term of the court was sustained. Atkins v. Kinman, 2 Gilm. R., 450. 

A judgment rendered on a day prior to that named in the collector's notice, or where the re- 
port of the collector does not comply with the law, is void. Pickett v. Hartsock, 15 111. R., 282. 

The county court has jurisdiction to render judgment against delinquent lands, 
for taxes, at any regular term after April in each year. The statute has not limited the rendi- 
tion of judgment to the first Monday in May; nor does it, in terms, require that it shall be at 
that or an"particular term. Stilwell etaLv. People, 49 111. R., 45 ; Opinion Auditor Minek, Jan. 
20, 1867. 

Where application was made for judgment at the June term of the county 
«ourt, and the court refused to enter judgment because the list had not been filed five days, and a 
new application was made to the next August term. Held, that the refusal at the June term, not 
having been on the merits, formed no bar to rendering a judgment on the second application. 
Stilwell etaly. People, 49 111. R., 45. 

There may be considerable doubt whether the county clerk has any right to go behind th« 
list compared and corrected by the collector and clerk, unless some person interested in the 
lands included therein, appears and objects to the entry of judgment. Unless such is the CH.se, 
the court is not required to determine whether the antecedent proceedings are regular. Opin- 
ion Auditor Lippincott, Nov. 12, 1869. An appearance in such a case does not have the effect to 
waiTe a material defect in the proceedings. The People ex ret. v. Nichols, 49 ILL R, 517. 

It will toe presumed that taxes are properly and legally assessed, and are le- 
gally and justly due, in the absence of proof to the contrary. The collector's list and report of 
delinquent lands in the manner nrescribed by statute, entitle him to judgment, unless the tax 
payer satisfactorily shows that the taxes have been paid, or some other legal defense to the 
merits. Buck v. The People, 78 111. R., 560. 

In counties under township organization, the county collector, and not the 
sheriff, is the proper person to make application for judgment against delinquent lands fox 
taxes. Beers etaUy. The People exreL,83 IlL R., 488. 

The courts are not inclined to entertain merely formal objections to taxat 
levied by municipalities, where the irregularities complained of do not affect unjustly the rights 
of the citizen. Purrington et al. v. The People, ex rel., 79 IlL R, 1L Courts can only look to objec- 
tions which affect the substantial justice of the tax. Thatcher v. The People ex rel., 79 111. R., 579. 

Where a party appears toefore the county court and makes specific objection* 
to a judgment for taxes against his land, but none on account of the levy not being properly 
made, he tacitly admits the legality of the levy, and can ndt be permitted to question it for th« 
•first time in the Supreme Court Kamet v. The People, 73 111. R., 274. 



424 REVENUE. [DIV. VIL. 

not having been made, completed or returned within the time- 
required by law, or on account of the property having been- 
charged or listed in the assessment or tax list without name, or m 
any other name than that of the rightful owner ; and no error or 
informality in the proceedings of any of the officers connected 
with the assessment, levying or collecting of the taxes, not affect- 
ing the substantial justice of the tax itself, shall vitiate or in any 
manner affect the tax or the assessment thereof ; and any irregular- 
ity or informality in the assessment roll or tax lists, or in any of the 
proceedings connected with the assessment or levy of such taxes, 
or any omission or defective act of any officer or officers connected 
with the assessment or levying of such taxes, may be in the discre- 
tion of the court, corrected, supplied and made to conform to law 
by the court, or by the person (in the presence of the court) from- 
whose neglect or default the same was occasioned. [As amended by 
act approved May 3, 1873. See § 88, Const., art. 9, § 4. 

192. Appeals.] § 192. Appeals from the judgment of the 
court may be taken during the same term to the supreme court on 
the party praying an appeal executing a bond to the people of the 
state of Illinois, with two or more sureties to be approved by the 
court, in some reasonable amount to be fixed by the court, con- 
ditioned that the appellant will prosecute his said appeal with 
effect, and will pay the amount of any tax assessment, and cost 
which may finally be adjudged against the real estate involved in 
the appeal by any court having jurisdiction of the cause. But no 
appeal shall be allowed from any judgment for the sale of 
lands or lots for taxes, nor shall any writ of error to reverse such 
judgment operate as a supersedeas, unless the party praying 
such appeal or desiring such a writ of error, shall before taking 
such appeal or suing out such writ of error, deposit with the 
county collector an amount of money equal to the amount of the 
judgment and costs. If in case of an appeal, or suing out a writ 
of error, the judgment shall be affirmed in whole or in part, the 
supreme court shall enter judgment for the amount of the taxes with 
damages, not to exceed ten per cent., and order that the amount 
deposited with the collector aforesaid, or so much thereof as may 
be necessary, shall be credited upon the judgment so rendered, and 
execution shall issue for the balance of said judgment, damages 
and costs. The clerk of the supreme court shall transmit to said 
county collector, a certified copy of the order of affirmance, and it 
shall be the duty of the collector, upon receiving the same, to 
apply so much of the amount deposited with him, as aforesaid, as 
shall be necessary to satisfy the amount of the judgment of the 
supreme court, and to account for the same as collected taxes. If 
the judgment of the county court shall be reversed and the cause^ 
remanded for a rehearing, and if upon the rehearing, judgment 



OIY. VII.] SALE OF DELINQUENT LANDS. 425 

shall be rendered for the sale of lands or lots for the taxes, or any 
part thereof, and such judgment be not appealed from, or a writ of 
error prosecuted with supersedeas issued thereon, as herein provi- 
ded, the clerk of the county court shall certify to the county col- 
lector the amount of such judgment, and thereupon it shall be the 
duty of the county collector to certify to the county clerk the 
amount deposited with him, as aforesaid, and the county clerk 
shall credit the said judgment with the amount of such deposit, or 
so much thereof as will satisfy the judgment, and the county col- 
lector shall be chargable with, and accountable for, the amount so 
credited, as collected taxes. Nothing herein contained shall be 
construed as requiring an additional deposit in case of more than 
one appeal or writ of error being prosecuted in said proceedings. 
If, upon a final hearing, judgment shall be refused for the sale of 
lands or lots for the taxes, or any part thereof, the collector shall pay 
over to the party who shall have made said deposit, or his legally 
authorized agent or representatives, the amount of the deposit, or 
so much thereof as shall remain after the satisfaction of the judg- 
ment against the premises in respect of which such deposit shall 
have been made. [As amended, 1877. 

193. Proceedings in case of appeal.] § 193. If judgment is 
rendered by any court, at any time, against any lands or lots, for 
any tax or special assessment, the county collector shall, after 
publishing a notice for sale, in compliance with the requirements 
of section 182 of this chapter, proceed to execute such judgment 
by the sale of lots and lands against which such judgment has 
been rendered: Provided, however, that in case of an appeal from 
any such judgment the collector shall not sell until such appeal is 
disposed of. [As amended, 1879. 

SALE OF DELINQUENT LANDS. 
Section. 

194. Process of sale. 

195. Payments noted on list. 

196. County clerk to assist in sale. 

197. Entry of sale — Redemption. 

198. County to furnish book. 

199. Forfeited tracts noted. 

200. " Sale and redemption record." 

201. Manner of conducting sale. 

202. How sold. 

203. Forfeited to state. 

204. Failure of collector to attend — Liability — Subsequent sale. 

205. Failure of county clerk to attend. 

206. Payment by purchaser. 

207. Certificate of purchase — Assignable. 

208. Index to tax sale books. 

194. Process for sale.] § 194. On the day advertised for sale 
the county clerk, assisted by the collector shall carefully examine 



426 REVENUE. [DIV. VIL 

said list upon which judgment has been rendered, and see that all 
payments have been properly noted thereon, and said clerk shall 
make a certificate to be entered on said record, following the order 
of court that such record is correct, and that judgment was ren- 
dered upon the property therein mentioned for the taxes, interest 
and costs due thereon, which certificate shall be attested by the 
clerk under seal of the court and shall be the process on which all 
real property or any interest therein shall be sold for taxes, special 
assessments interest and costs due thereon and may be substan- 
tially in the following form.(l) 

I, , clerk of the county court, in and for the county of , do 

hereby certify that the foregoing is a true and correct record of the delin- 
quent real estate in said county, against which judgment and order of sale 
was duly entered in the county court of said county, on the — ■— day of 

, 18 — , for the amount of the taxes, special assessments, interest and 

costs due severally thereon as therein set forth, and that the judgment and 
order of court in relation thereto fully appears on said record. 

[As amended, 1879. 

195. Payments noted on list] § 195. On the day advertised 
for sale, the collector shall report to the county clerk a list of all 
lands and lots upon which taxes and special assessments have been 
paid after the rendition of judgment ; and said clerk shall note the 
fact of such payment opposite such tracts or lots upon the record 
aforesaid. [Repealed by act approved May 29, 1879. 

196. County clerk to assist in sale.] § 196. The county clerk, 
in person or by deputy, shall attend all sales of real estate for 
taxes, made by the collector, and shall assist at the same. [See 
§205. 

197. Entry of sale— Redemption.] § 197. When any tract or 
lot shall be sold, it shall be the duty of the clerk to enter on the 
record aforesaid, the quantity sold and the name of the purchaser, 
opposite such tract or lot, in the blank columns provided for that 
purpose; and when any such property shall be redeemed from 
sale, the clerk shall enter the name of the person redeeming, the 
date, and amount of redemption, in the proper column. [See § 
210-213. 



(1) Under the constitution, sale of lands for non-payment of taxes, or special 
assessments for State, county, municipal or other purposes, is to be made by the general officer 
of the county having authority to receive State and county taxes. Hills v. City of Chicago, 60 111. 
R., 86 ; Otes t. City of Chicago, 62 111. R., 299; Webster t. City of Chicago, 62 111. R, 302. 

The precept or certified copy of judgment on which sale is made for non-payment 
of taxes, is not process in the strict sense of the word, and need not run in the name of the peo- 
ple. Curry y. Hinman, 11 111. R. 2 424 ; Scarritt v. Chapman, 11 111. R, 444. 

The notice of application for judgment and sale stands as process, and must be regular in all 
respects. Scammon v. City of Chicago, 40 111. R., 146. 

Where the report of the collector simply shows the total amount of taxes due, 
without specifying whether the delinquent tax was due to the State or county, such error is 
fatal, and the purchaser at the tax sale can acquire no title. Fox v. Turtle, 55 111. R., 377. 



OIY. Til.] SALE OF DELINQUENT LANDS. 427 

198. County to furnish book.] § 198. The book for such 
record shall be furnished at the expense of the county, and be so 
ruled that there shall be suitable blank columns for entering the 
quantity or portion of each tract or lot that may be sold, the name 
of the purchaser, and such other columns as may be deemed 
necessary . [Repealed by act approTed May 29, 1879. 

199. Forfeited tracts noted.] § 199, All tracts or lots forfeited 
to the state at such sale, as hereinafter provided, shall be noted on 
said record. 

200. Sale and redemption record.] § 200. Said book shall be 
known and designated as the tax judgment sale, redemption and for- 
feiture record, and be kept in the office of the county clerk. [As 
amended, 1879. 

201. Manner of conducting sale.] § 201. The collector, in per- 
son, or by deputy, shall attend at the court house in his county, 
on the day specified in the notice for the sale of real estate for 
taxes, and then and there, between the hours of nine o'clock in the 
forenoon and four o'clock in the afternoon, proceed to offer for 
sale, separately, and in consecutive order, each tract of land or 
town or city lot in the said list on which the taxes, special assess- 
ments, interest or costs haTe not been paid. The sale shall be con- 
tinued from day to day, until all the tracts or lots in the delinquent 
list shall be sold or ottered for sale. (1) [See § 204. 

(1) It is the duty of the collector at tax sale to offer the tracts and lots separately, 
and to collect the taxes at the least possible loss to the owner. To allow a person to select from 
the list a portion of the delinquent lands, and become the purchaser of the whole for the tax 
due, without competition, is fraudulent Brown et al. v. Hogle et al., 30 111. R., 120. 

In the sale of lands for taxes, the law must be strictly pursued in all its ma- 
terial requirements, or the sale will be invalid. Lane v. Bommelmann, 21 111. R., 143 ; Holbrook v. 
Dickinson, 46 Id., 285. 

Where the law authorizing a tax is unconstitutional, a tax sale under it is void, 
and the case will be treated as if no assessment had ever been made. Holbrook v. Dickinson, w 
ni. R., 285; Springer v. Rossetter et al, 47 Id., 223, 

A valid tax sale, after a deed is acquired, passes a new and perfect title to the pur- 
chaser. It is superior in its nature to title under an ordinary sheriff's deed. Atkins v. Hinman, 
2 Gilm. R., 449. 

It is fraud for a tenant in common to permit lands held in common to be sold for taxes, and 
become himself the purchaser. Brown et al. v. Hogle et al., 30 111, R., 119. 

When a tax sale is not legally conducted, it works no forfeiture to the owner, and 

no rights are acquired. Conway v. Cable et al., 37 111. R., 82. 

The omission of essential acts in conducting a tax sale cannot be cured by legis- 
lative enactments so as to render the sale valid. And where the officers conducting the sale 
agree with the purchaser to receive a part only of the amount of taxes due, the agreement is 
illegal. Conway v. Cable et al., 37 111. R., 82. 

Lands must toe sold as listed. If a block of town lots are listed as one block, they must 
be sold in a body and redeemed in a body ; but in case of a large number of town lots, held for 
purposes of speculation, the owner may not be able to redeem all, or for special reasons may de- 
sire to redeem a part. In summary proceedings this right is preserved to the owner. Opinion 
Att'y Gen. Cole, (Minn.) vol. 1, p. 400. 

A purchaser at a sale, having an interest in the land as heir, acquires no addi- 
tional title; nor does a person claiming title to land which is listed in his name, acquire any 
greater interest by permitting it to be sold for taxes and becoming the purchaser. Chateau v. 
J<ynes et al., 11 111. R., 322. Nor can a mortgagor, by such an act, defeat the lien of the mortgage. 
The purchase by him at tax sale will be regarded as payment of taxes. Frye v. Bank of Illinou. 
■:\ II L K.. 383 ; Moore v. Titman, 44 Id., 367. 



428 REVENUE. [DIV. VII. 

202. How sold.] \ 202. The person at such sale offering to pay 
the amount due on each tract or lot for the least percentage thereon as- 
penalty, shall be the purchaser of such tract or lot: Provided, that no 
bid shall be accepted for a penalty exceeding twenty-five per cent of the 
amount of such tax or special assessment. [As amended June 26, 1895.] 

203. Forfeited to state.] I 203. Every tract or lot so offered 
at public sale, and not sold for want of bidders, shall be forfeited 
to the state of Illinois. Provided, however, that whenever the county 
judge, county clerk and county treasurer shall certify that the taxes on 
forfeited lands equals or exceeds the actual value of such lands, th& 
officer directed by law to expose for sale lands for delinquent taxes 
shall, on the receipt of such certificate, offer for sale to the highest 
bidder the tract or lands, in such certificate described, after first giving 
ten days' notice of the time and place of sale, together with a descrip- 
tion of the tract or lands so to be offered. And a certificate of purchase 
shall be issued to the purchaser at such sale as in other cases in this 
act provided; and the county collector shall receive credit in his settle- 
ment with the custodian of the several funds, for which such tax was 
levied for the amount not realized by such sale. And the amount re- 
ceived from any such sale shall be paid by such collector, pro rata, to 
the custodian of the several funds entitled thereto. [As amended, 1881. 
Bee § 226-230. 

204. Failure of collector to attend.] § 204. If any collector, 
by himself or deputy, shall fail to attend any sale of lands or lots 
advertised according to the provisions of this act, and make sale 
thereof as required by law, he shall be liable to pay the amount 
of taxes, special assessments and costs due upon the lands or lots 
so advertised. Said collector may afterwards advertise and sell 
such delinquent property to reimburse himself for the amount ad- 
vanced by him ; but at no such sale shall there be any property 
forfeited to the state. [See § 201. 

205. Failure of county clerk to attend.] § 205. If any county 
clerk shall fail to attend any tax sale of real estate, either in 

Eerson or by deputy, or to make and keep the record, as required 
y this act, he shall forfeit and pay the sum of $500, and shall 
be liable to indictment for such failure, and upon conviction 
shall be removed from office. Said sum shall be sued for in an 
action of debt, in the name of the People of the State of Illinois, 
and when recovered shall be paid into the county treasury. 
[See § 196. 

An agent for the payment of taxes on lands, who allows them to be sold, and be- 
comes the purchaser, will hold the lauds as trustee for his principal. Burton et at. v. Moss, 32 I1L 
R., 50. 

A person having an agreement for a conveyance of lands, in which he i» 
obliged to pay the taxes, acquires no title by allowing them to be sold and becoming the pur- 
chaser. The act will be regarded as mere payment of taxes. Oliver et at. v. Croswell, 42 111. 
R., 42. 



DIV. VII. J CERTIFIED COPY OF SALE LISTS — REDEMPTION. 429" 

206. Payment by purchaser.] § 206. The person purchasing 
any tract or lot, or any part thereof, shall forthwith pay to the 
collector the amount charged on such tract or lot, and on failure 
so to do, the said tract or lot shall be again offered for sale in 
the same manner as if no such sale had been made ; and in no 
case shall the sale be closed until payment is made, or the tract 
or lot again offered for sale. 

207. Certificate of purchase— Assignable.] § 207. The county 
clerk, on being requested so to do, shall make out and deliver to 
the purchaser of any lands or lots sold as aforesaid, a certificate 
of purchase, to be countersigned by the collector, describing the 
land or lot sold as the same was described in the delinquent list, 
date of such sale, the amount of taxes, special assessments, in- 
terest and costs for which the same was sold, and that payment 
has been made therefor. If any person shall become the pur- 
chaser of more than one tract or lot, he may have the whole or 
one or more of them included in one certificate. Such certifi- 
cate of purchase shall be assignable by indorsement, and an 
assignment thereof shall vest in the assignee, or his legal rep- 
resentatives, all the right and title of the original purchaser* 
[See § 225. 

208. Index to tax sale books.] § 208. The county clerk is 
hereby authorized to make an index to tax sale records in a 
book, when furnished by the county — which index shall be kept 
in the county clerk's office as a public record, open to the in- 
spection of all persons during office hours. 

209. In twenty days after sale.] § 209. The county clerk shall, 
within twenty days after any sale for taxes, make out and trans- 
mit to the auditor a transcript of sales for taxes, which shall be 
written on foolscap paper, made up and stitched in book form, 
suitable for binding. The clerk shall certify to the correctness 
of said transcript, under the seal of his office. Said list shall 
not include any tracts or lots forfeited to the state at such sale. 
The county clerk, for failure to make out, furnish or forward said 
list, as herein required, shall forfeit and pay into the state treas- 
ury the sum of $500, to be recovered in an action of debt, in the 
name of the People of the State of Illinois, in any court in this 
state having competent jurisdiction. 

210. Time of redemption — amount.] §210. Real property- 
sold under the provisions of this act may be redeemed at any time before 
the expiration of two years from the date of sale, by payment in legal 
money of the United States to the county clerk of the proper county, the 
amount for which the same was sold together with the amount of the 
penalty bid at such sale, if redeemed at any time before the expiration 



430 REVENUE. [DIV. VII. 

of six months from the day of sale. If between six and twelve months, 
the amount for which the same was sold together with twice the amount 
of the penalty bid; if between twelve and eighteen months, the amount 
for which the same was sold together with three times the amount of the 
penalty bid ; and if between eighteen months and two years, the amount 
for which the same was sold together with four times the amount of the 
penalty bid at said sale. The person redeeming shall also pay the amount 
of all taxes and special assessments accruing after such sale with seven 
(7) per cent penalty thereon, unless such subsequent tax or special assess- 
ment has been paid by or on behalf of the person for whose benefit the 
redemption is made and not by the purchaser at the tax sale or his 
assignee ; and it is hereby made the duty of the county clerk to include 
the amount of the subsequent taxes or special assessments paid by the 
purchaser or holder of the tax certificate in his certificate of redemption. 
If the real property of any minor heir, idiot or insane person shall be 
sold for non-payment of taxes or special assessments, the same may be 
redeemed at any time after sale and before the expiration of one year 
after such disability be removed, upon the terms specified in this section, 
and upon the payment of ten (10) per cent per annum the amount due 
including penalties from and after the expiration of two years from the 
date of sale, which redemption may be made by themselves, or by any 
person in their behalf. Tenants in common or joint tenants shall be 
allowed to redeem their individual interests in real property sold under 
the provisions of this act, in the same manner and under the terms 
specified in this section for the redemption of other real property; any 
redemption made shall inure to the benefit of the person having the 
legal or equitable title to the property redeemed, subject to the right of 
the person making the same to be reimbursed by the person benefited. 
[As amended June 26, 1895.] 

(1) On paying redemption money it ta deemed absolutely necessary for the clerk 
to require the surrender of the certificate as a condition precedent to paying over the money. 
Or, in lieu of the certificate, satisfactory proof by affidavit of the loss or destruction thereof, with- 
out transfer or assignmei . t. Opinion Auditor Miner, May 29, 186a 

When, nnder claim and color of title all the taxes legally assessed are paid for 
the full period of limitation, a bar is created to the redemption of any portion of the property. 
Chickering et al. v. Failes ex rel„ et al.. 38 111. R., 342. 

The provisions of the limitation act of 1839 empowering minors to redeem land sold for taxes, 
within three years after attaining their majority, by paying to the person who has paid the tax, 
the amount with interest, do not take from them the right to redeem within one year after hie 
majority, by paying double the amount, etc., to the collector. Holloway et al. v. Clark, 27 111. 
R.,488. 

In the redemption of land belonging to infants, if the clerk has failed to file the 
affidavit by which the right to redeem was established, the right to redeem may be shown if the 
Talidity of the redemption is questioned. Cliapin v. Cortenius et al., 15 111. R„ 432. 

Under the revenue law of 1845 lands sold for taxes were redeemable, within two 
years by the payment of double the amount for which they were sold, all taxes accruing after 
such sale, with six per cent interest on such paid taxes, if any were paid, from the first day of 
May in each year up to the time of payment. The act of 1853, amendatory thereof, changed the 
rate of interest from six to ten per cent., but fixed no certain day from which it should be com- 
puted, except that it should be from the day of sale, whenever that may be. The " day of sale " 
here alluded to is the day on which a sale might take place in each year, if the subseqnent taxes 
•were not paid, and not the day of the first sale under which the tax purchaser claims. If the 
purchaser pays no subsequent taxes he can claim no interest. Comstock v. Cover, 35 111. R., 470. 



DTV. VH.] REDEMPTION. 431 

person making the same to be re-imbursed b j the person benefited. 
[See § 197. Const., art. 9, § 5. 

311. When purchaser suffers land to be sold again.] § 211. 

If any purchaser of real estate sold for taxes or special assess- 
ment shall suffer the same to be forfeited to the state, or again 
sold for taxes or special assessment, before the expiration of the 
last day of the second annual sale thereafter, such purchaser 
shall not be entitled to a deed for such real property until the 
expiration of a like term from the date of the second sale or for- 
feiture, during which time the land shall be subject to redemp- 
tion, upon the terms and conditions prescribed in this act ; but 
the person redeeming shall only be required to pay, for the use 
of such first purchaser, the amount paid by him. The second 
purchaser, if any, shall be entitled to the redemption money, as 
provided for in the preceding section : Provided, however, it shall 
not be necessary for any municipal corporation which shall bid 
in its own delinquent special assessments, at any sale, in default 
of other bidders, to protect the property from subsequent forfeit- 
ures or sales, as above required in this section. [As amended, 1879. 

212. Books, etc., evidence.] § 212. The books and records be- 
longing to the office of county clerk, or copies thereof, certified 
by said clerk, shall be deemed 'prima facie evidence to prove the 
sale of any land or lot for taxes or special assessments, the re- 
demption of the same, or payment of taxes or special assessments 
thereon. 

Clerk to pay over money to successor.] The county clerk shall, 
at expiration of his term of office, pay over to his successor in 
office all moneys in his hands received for redemption from sale 
for taxes on real estate. [As amended by act approved May 3, 1873. 

213. Sales in error — entry.] I 213. Whenever it shall be 
made to appear to the satisfaction of the county clerk that any tract or 
lot was sold, and that such tract or lot was not subject to taxation, or 
upon which the taxes or special assessments had been paid previous to 
the sale of said tract or lot, or arise from a double assessment, or that 
the description is void for uncertainty, he shall make an entry opposite 
to such tracts or lots in the sale and redemption record that the same 
was erroneously sold, and such entry shall be prima facie evidence of 
the fact therein stated; and unless such error is disproved the county 
collector shall, on demand of the owner of the certificate of such sale, 
refund the amount paid and cancel such certificate so far as it relates to 
such tract or lots. The collector, shall take credit in settlement of his 
accounts thereafter with such officers as he may be liable to for their 
pro rata amounts respectively paid as aforesaid. [As amended June 
26, 1895.] 



432 



REVENUE. 



[DIV. VII. 



214. Purchaser at erroneous sale paid back.] I 214. When 
the purchaser at such erroneous sale, or any one holding under him, shall 
have paid any tax or special assessment upon the property so sold, which 
has not been paid by the owner of the property, he shall have the right 
to recover from such owner the amount he has so paid, with ten per cent 
interest, as money for the owner's use. 

215. Effect of receipt of redemption money.] § 215. The 
receipt of the redemption money of any tract of land or lot by any pur- 
chaser, or the return of the certificate of purchase for cancellation, shall 
•operate as a release of all the claim to such tract or lot, under or by 
virtue of the purchase. 





TAX 


DEEDS. 


216. 


Notice. 


221. Form of deed. 


217. 


Affidavit — evidence — perjury. 


222. Evidence recorded. 


218. 


Printers' fee. 


223. Applies to former sales. 


219. 


When entitled to deed. 


224. Effect of deed as evidence. 


220. 


Deed may include several tracts. 


225. When deed must be taken out, 



216. Notice.] § 216. Hereafter no purchaser or assignee of 
such purchaser, of any land, town or city lot, at any sale of lands, 
or lots, for taxes or special assessments, due either to the state or 
county, or incorporated town or city within the sam^, or at anv 
sale for taxes or levies otherwise, by the laws of this state, shall 
be entitled to a deed for lands or lots so purchased, unti 1 the fol- 
lowing conditions have been complied with, to-wit : Such pur- 
chaser or assignee shall serve, or cause to be served, a written oi 
printed, or partly written or partly printed notice of such pur- 
chase, on every person in actual possession or occupancy of suck 
land or lot ; also, the person in whose name the same was taxed 
or specially assessed, if upon diligent inquiry, he or she can be 
found in the county, also, the owners of or parties interested 
in said land or lot, if they can, upon diligent inquiry, be 
found in the county, at least three months before expira- 
tion of the time of redemption on such sale ; in which notice 
he shall state when he purchased the land or lot, in whose name 
taxed, the description of the land or lot he has purchased ; for 
what year taxed or specially assessed ; and when the time of re- 
demption will expire ; if no person is in possession or occupancy 
of such land or lot and the person, in whose name the same was 
taxed or specially assessed, upon diligent inquiry, cannot be found 
in the county, or the owners of, or parties interested in said land 
or lot, upon diligent inquiry, cannot be found in the county, then 
such person, or his assignee, shall publish such notice in some 
newspaper printed in such county, and if no newspaper is printed 
in said county, then in the newspaper that is published in this 
state nearest to the county seat of the county in which such land 
or lot is situated, which notice shall be inserted three times, the 



DIV. Vn.] TAX DEEDS. 43o 

first time not more than five months, and the last time not less 
than three months, before the time of redemption shall expire: 
Provided, however, that if the owners of said land or lot, or the 
parties interested therein, cannot be found in the county, and the 
person in the actual occupancy is tenant to, or is in possession 
under the owner or party interested therein, then service of said 
notice upon such tenant or occupant, shall be deemed service 
upon the owner or party interested : And, provided, further, that 
if the owners or parties interested are unknown to such purchaser 
or his assignee, then the said publication, as to them, may be to 
the unknown owner or parties mterested.(l) [As amended, 1879. 

217. Affidavit— Evidence— Perjury.] § 217. Every such pur- 
chaser or assignee, by himself or agent, shall, before he shall be 
entitled to a deed, make an affidavit of his having complied with 
the conditions of the foregoing section, stating particularly the 
facts relied on as such compliance — which affidavit shall be deliv- 
ered to the person authorized by law to execute such tax deed, 
and which shall by him be filed with the officer having custody of 
the record of the lands and lots sold for taxes and entries of re- 
demption in the county where such lands or lots shall lie, to be by 
such officer entered on the records of his office, and carefully pre- 
served among the files of his office, and which record or affidavit 
shall be prima facie evidence that such notice has been given. 
Any person swearing falsely in such affidavit shall be deemed guilty 
of perjury, and punished accordingly. 

218. Printer's fee. J § 218. In case any person shall be com- 
pelled to publish such notice in a newspaper, then, before any 

(1) A published notice cannot toe received as tl»e substitute for the notice to be 

rrsonally delivered to the party concerned. Cooley on Taxation, p. 218 And where a notice 
to be given personally and also by publication a failure in either is a failure. Appeal Powers, 
29 Mich, R., 504. 

A purchaser of land at tax sale is not entitled to a deed until the lapse of two years; 
a deed given before that time is not notice to the grantee of the purchaser, of the illegality. A 
tax deed may be good as color of title, although not so as permanent title. Boman v. Wetting, 
89 ill. R., 418. 

A tax title is purely technical, as contra distinguished from a meritorious title, and 
depends for its validity upon a strict compliance with the statute ; and any omission, as the seal 
of the officer making it, will not be corrected by a court of chancery. ALtes v. Hincklee d al„ 36 
I1L R., 265. 

A tax deed is sufficient to show claim and color of title, if it appears on its face 
to be regular. The person relying upon it for that purpose is not bound to show that the pre- 
requisites of the statute have been complied with. Holloway et al. v. Clark, 27 111. R., 486. 

If an officer executes a deed for land under a sale for taxes, without notice hav- 
ing been given to the person in whose name the land was taxed, by personal service thereof if 
he resides in the county, or, if not, then by publication, informing him of the time of the sale, 
and when the time for redemption will expire, such deed will be inoperative to convey a title. 
And proof that such notice has been given is essential to the admissibility of a tax deed in evi- 
dence. Holbrook v. Fellows, 38 111. R., 440. 

In 'an action of ejectment, where the plaintiff relied on a tax deed, the de- 
fendant sought to prove that the taxes, for the alleged non-payment ot which the land had 
been sold, had been paid before the sale, and offered a receipt for such taxes from the collector 
for "teety-seven dollars." The receipt also contained a column headed "total tax," which 
footed up, in figures. 827. This was sufficient as explaining what "teety-seven dollars " meant. 
Daniels v. Burso, 40 111. R., 307. 



434 REVENUE. [DIY. VIL> 

person who may have a right to redeem such lands or lots from 
such sale shall be permitted to redeem, he shall pay the officer or 
person who by law is authorized to receive such redemption 
money, the amount paid for printer's fee for publishing such 
notice, for the use of the person compelled to publish such notice 
as aforesaid ; the fee for such publication shall not exceed $1 for 
each tract or lot contained in such notice. 

219. When entitled to deed.] § 219. At any time after th» 
expiration of two years from date of sale of any real estate 
for taxes or special assessments, if the same shall not have been 
redeemed, the county clerk, on request, and on the production of 
the certificate of purchase, and upon compliance with the three 
preceding sections, shall execute and deliver to the purchaser, 
his heirs or assigns, a deed of conveyance for the real estate 
described in such certificate. 

220. Deed may include several tracts— Fee.] § 220. When 
any person shall hold more than one certificate of purchase at the 
same sale, and for the same year's tax or special assessment, the 
clerk shall, on the request of the holder of such certificates, include 
as many tracts or lots described therein in the deed of conveyance 
as such person may desire, and for which deed the county clerk 
shall have a fee of fifty cents for each certificate embraced therein : 
Provided, that no greater fee than $3 shall be charged upon any 
one deed. [As amended by act approved May 3, 1873. 

221. Form of tax deed.] § 221. The deed so made by the 
county clerk under the official seal of his office shall be re- 
corded in the same manner as other conveyances of real estate, 
and shall vest in the grantee, his heirs and assigns, the title 
of the property therein described without further acknow- 



"Where the defendant in ejectment, in resisting a tax title, repels the presump- 
tion by proof that the land in controversy has been duly listed, the plaintiff will be required to 
prove, affirmatively, that there was a proper listing. Schuyler et. al. v. Hall, 11 111. R., 465; Tib- 
bets v. Job et al., 11 111. R., 460. 

A party seeking to substantiate a tax title, must exhibit i first, a valid judgment 
against the land ; second, a valid precept authorizing the officer to make the sale ; and, third, a 
proper conveyance of the land from the proper officer. These are essential to the validity of 
the title, and none of them can be dispensed with. Atkins f . Hinman, 2 Gilm. R., 448. 

The construction of a tax deed in respect to the description of the land con- 
veyed, must be the same as if such description were used in a deed between private intiivMu- 
als. The doctrine of strict construction, as applied to the execution of naked statutory powers, 
has no application in such cases. Blakeley v. Bestor, 13 111. R., 715. 

Courts of chancery will not take Jurisdiction to try the validity of tax titles, on 
the ground that they are a cloud. Springer v. Rosette et al., 47 111. K. 223. 

A deed of land sold for taxes under the revenue law of 1839, made either by the officer mak- 
ing the sale or his successor in office, is valid. Bestor v. Powell et al., 2 Gilm. R., 727. 

An auditor's deed to land, made in pursuance of a sale for taxes, under the law of 1827, will 
not show a complete title in a party, without proof that the pre- requisites of the law have been 
complied with. Irving v. BrwwneU, 11 111. R., 411. It has been held that if any portion of a tax 
upon which a judgment was rendered, was illegal, or if the judgment was for too large a sum, 
even to the extent of a few cents, a sale and tax deed based upon such judgment, would be 
void. McLaughlin v. Thompson, 55 ILL R., 249. 



DIV. VII.] TAX DEEDS. 435 

ledgement or evidence of such conveyance, and said conveyance 
shall be substantially in the following form: 

State of Illinois, \ 

County, j 

Whereas, at a public sale of real estate for the non-payment of taxes, 

made in the county aforesaid, on the day of , A. D. 18 — , the 

following described real estate was sold, to-wit: (here place description of 
real estate conveyed), and whereas, the same not having been redeemed 
from said sale, and it appearing that the holder of the certificate of pur- 
chase of said real estate has complied with the laws of the state of Illinois 
necessary to entitle (insert him, her them) to a deed of said real estate: 

Now, therefore, know ye, that I, , county clerk of said county of 

, in consideration of the premises and by virtue of the statutes of 

the state of Illinois in such cases provided, do hereby grant and convey 

unto , his heirs and assigns forever, the said real estate hereinbefore 

described, subject, however, to any redemption provided by law. 

Given under my hand and seal of our court this day of , A. 

D. 18—. 

, County Clerk. 

[As amended by act approved May 3, 1873. See § 225. 

222. Evidence recorded.] § 222. County clerks shall record 
the evidence upon which deeds are issued, and be entitled to the 
same fee therefor that may be allowed by law for recording deeds. 

223. Applies to former sales.] § 223. The foregoing six sec- 
tions shall apply to all sales of real estate for taxes heretofore 
made, as well as to such sales for taxes and special assessments 
hereafter to be made. 

224. Effect of deed as evidence.] § 224. Deeds executed by the 
county clerk, as aforesaid, shall be prima facie evidence, in all con- 
troversies and suits in relation to the right of the purchaser, his 
heirs or assigns, to the real estate thereby conveyed of the follow- 
ing facts : First, That the real estate conveyed was subject to tax- 
ation at the time the same was assessed, and had been listed and 
assessed in the time and manner required by law. Second, That 
the taxes or special assessments were not paid at any time before 
the sale. Third, That the real estate conveyed had not been re- 
deemed from the sale at the date of the deed. Fourth, That the 
real estate was advertised for sale in the manner and for the length 
of time required by law. Fifth, That the real estate was sold for 
taxes or special assessments, as stated in the deed. Sixth, That 
the grantee in the deed was the purchaser or assignee of the pur- 
chaser. Seventh, That the sale was conducted in the manner re- 
quired by law. And any judgment for the sale of real estate for 
delinquent taxes rendered after the passage of this act ex- 
cept as otherwise provided in this section, shall estop all 
parties from raising any objections thereto or to a tax title based 
thereon, which existed at or before the rendition of such judgment, 
and could have been presented as a defense to the application for 



436 REVENUE. [DIY. VTL 



such judgment in the court wherein the same was rendered, and 
as to all such questions the judgment itself shall be conclusive evi- 
dence, of its regularity and validity in all collateral proceedings, 
except in cases where the tax or special assessments have been 
paid or the real estate was not liable to the tax or assessment. Provided, 
that any judgment or decree of court setting aside any tax deed pro- 
cured under this act, shall provide that the claimant shall pay to the 
party holding such tax deed, all taxes and legal costs, together with all 
penalties, as provided by law, as it shall appear the holder of such deed 
or his assignor, shall have properly paid or be entitled to in procuring 
such deed, before such claimant shall have the benefits of such judgment 
or decree. [Proviso added, 1885. 

225. When deed must be taken out.] § 225. Unless the holder 
of the certificate for real estate purchased at any tax sale under 
this act, takes out the deed as entitled by law, and files the same 
for record within one year from and after the time for redemption 
expires, the said certificate or deed, and the sale on which it is 
based, shall, from and after the expiration of such one year, be ab- 
solutely null. If the holder of such certificate shall be prevented 
from obtaining such deed by injunction or order of any court, or 
by the refusal of the clerk to execute the same, the time he is so 
prevented shall be excluded from the computation of such time. 
Certificates of purchase and deeds executed by the county clerk 
shall recite the qualifications required in this section. [See § 207. 

FORFEITED PROPERTY. 

226. County clerk to keep record of.] § 226. Each county clerk 
shall procure, at the expense of the county, a suitable record book, 
in which they shall keep a record of the real property forfeited to 
the state under the provisions of this act. Such book shall be 
properly ruled and headed, and proper columns provided for the 
several taxes and charges, redemptions and sales thereof. [Re- 
pealed by act approved May 29, 1879. 

227. Redemption or purchase of forfeited property.] § 227. If 
any person shall desire to redeem or purchase any tract of land or 
lot forfeited to the state, he shall apply to the county clerk, who 
shall issue his order to the county collector, directing him to re- 
ceive from said person the amount due on said tract or lot, which 
shall in no case be less than ten per cent, on all taxes heretofore 
forfeited, and twenty-five per cent, on all taxes hereafter levied and 
forfeited, in addition to the tax, special assessments, interest and 
printers fees due thereon, particularly describing the property and 
setting forth the amount due ; and upon presentation of said order 
to the county collector, he shall receive said amount and give the 
person duplicate receipts therefor, setting forth a description of 
the property and the amount received — one of which shall be 



DIV. VII.J FORFEITED rnorERTT. 437 

countersigned by the county clerk, and when so countersigned, 
shall be evidence of the redemption or sale of the property therein 
described, as the case may be, but no such receipt shall be valid 
until it is countersigned by the county clerk. The other receipt 
shall be filed by the county clerk in his office, and said clerk shall 
make a proper entry of the redemption or sale of the property on 
the books in his office, and charge the amount of the redemption 
or sale money to the county collector. In cases of sales, the col- 
lector and clerk shall make the receipt in the form of a certificate 
of purchase. Property purchased under this section shall be sub- 
ject to redemption, notice, etc., the same as if sold at regular pub- 
lic tax sale. (See § 225.) [As amended, 1879. 

228. Report and payment of money collected on forfeited 
land.] § 228. It shall be the duty of the county clerk, annually, 
when he makes return of the amount of taxes levied, to report 
to the auditor the amount due the state on account of the re- 
demption and sales of such forfeited property, and said auditor 
shall charge the same to the collector. If the collector who 
received said redemption or sale money shall be succeeded in 
office, he shall pay the amount in his hands over to his successor, 
who shall pay said amount into the state treasury when he set- 
tles for the taxes of the current year. 

229. Back tax added— Effect,] § 229. The amount due on 
lands and lots previously forfeited to the state, and remaining 
unpaid on the first day of November, shall be added to the tax 
of the current year, and the amount thereof shall be reported 
against the county collector with the amount of the taxes for 
said year ; and the amount so charged shall be placed on the tax 
books, collected and paid over in like manner as other taxes. 
The county collector is hereby authorized to advertise and sell 
said property in the manner hereinbefore required by this act, 
as if said property had never been forfeited to the state, and the county, 
city, town or school district may, by their agent, attend such sale for taxes 
and buy said lands and acquire the same rights that individuals now 
have under the law, and acquire, hold, sell and dispose of said title 
thereto, the same as and in the same manner as individuals may do un- 
der the laws of this state, in case of sale for taxes. Said additions and 
sales shall be continued from year to year, until the taxes on said 
property are paid, by sale or otherwise. [As amended, 1881. 

230. Snit for tax on forfeited property.] § 230. The county 
board may at any time institute suit, in an action of debt in the 
name of the People of the State of Illinois, in any court of com- 
petent jurisdiction for the whole amount due on forfeited prop- 
erty ; or any county, city, town, school district, or other munici- 
pal corporation, to which any such tax may be due, may at any 



438 REVENUE. [div. ra. 

time institute suit in an action of debt, in its own name, before 
any court of competent jurisdiction, for the amount of such tax 
due any such corporation on forfeited property, and prosecute 
the same to final judgment. The county board may, also, at any time, 
institute suit in an action of debt in the name of the people of the state 
of Illinois, in any court of competent jurisdiction, against any person, 
firm or corporation, for the recovery of any personal property tax due 
from such person, firm or corporation, and in any such suit for the re- 
covery of personal property tax, the return of the county collector that 
such taxes are delinquent, shall be prima facie evidence that such taxes 
are due and unpaid, but the fact that such taxes are due and unpaid 
may be proven by other competent testimony. This act shall apply to 
all taxes heretofore levied against any person, firm or corporation and 
now upon any assessment book or roll, and on the sale of any property fol- 
lowing such judgment, on execution or "otherwise, any such 
county, city, town, school district or other municipal corporation 
interested in the collection of said tax may become the pur- 
chaser at such sale of either real or personal property, and if 
the property so sold is not redeemed (in the case of real estate) 
may acquire, hold, sell and dispose of the title thereto, the same 
as individuals may do, under the laws of this state ; and in any 
such suit or trial for forfeited taxes, the fact that real estate or personal 
property is assessed to a person, firm or corporation, shall be prima 
facie evidence that such person, firm or corporation was the owner 
thereof, and liable for the taxes for the year or years for which the as- 
sessment was made; and such fact may be proved by the introduction 
in evidence of the proper assessment book or roll, or other competent 
proof. [As amended, 1881. 

FINAL SETTLEMENT OF COUNTY COLLECTOB. 

231. Statement to county clerk.] § 231. On or before the 
third Monday in June, annually, the county collector shall make 
out and file with the county clerk a statement in writing, setting 
forth, in detail, the name of each person charged with personal 
property tax which he has been unable to collect, by reason of 
the removal or insolvency of the person charged with such tax, 
the value of the property, and the amount of tax, the cause ol 
inability to collect such tax, in each separate case, in a column 
provided in the list for that purpose. Said collector shall, at the 
same time, make out and file with the county clerk a similai 
detailed list of errors in assessment of real estate and errors 
in footing of tax books, giving in each case a description 
of the property, the valuation and amount of several taxes 
and special assessments, and cause of error. The truth of 
the statements contained in such lists shall be verified by 
affidavit of the county collector. County collectors, in cases 
of removals and insolvencies, may give, as the cause of in- 



DIT. YH.] FINAL SETTLEMENT OF COUNTY COLLECTOR. 439 

ability to collect, the same cause as sworn to by the town or 
district collectors, stating in their return the fact that such was 
the statement made by the town or district collector, and that 
such tax still remains uncollected. 

232. Credit on forfeited property— Printers' fee.] § 232. If 
any lands or lots shall be forfeited to the state for taxes or special 
assessments, the collector shall be entitled to a credit in his final 
settlement, for the amount of the several taxes and special assess- 
ments thereon — the county to allow the amount of printers' fees 
thereon, and be entitled to said fees so allowed, when collected. 

233. Settlement with county board.] § 233. On the third 
Monday in June, annually, the county board shall settle with 
and allow the county collector credit for such allowance as he 
may be legally entitled to. [See § 242. 

234. When collector to account with clerk.] § 234. If there 
be no session of the county board held at the proper time for set- 
tling and adjusting the accounts of the county collector, it shall be 
the duty of the collector to file the lists with the county clerk, who 
shall examine said lists and correct the same, if necessary, in like 
manner as said board is required to do. Said county clerk shall 
make an accurate computation of the value of the property and 
the amount of the delinquent tax and special assessments returned, 
for which the collector is entitled to credit. 

235. Clerk to certify to auditor.] § 235. The county clerk 
shall immediately, in either case, certify to the auditor of public 
accounts the valuation of property, and the amount of state taxes 
due thereon, for which the collector may be allowed credit. 

236. Clerk to certify to local authorities, etc.] § 236. The 
county clerk shall also, at the same time, certify to the several 
authorities or persons with whom the county collector is to make 
settlement, showing the valuation of property and amount of taxes 
and special assessments due thereon allowable to said collector in 
the settlement of their several accounts. 

237. Credits of final settlement— Examination of accounts, 
etc.] § 237. The auditor and other proper authorities or persons 
shall, in their final settlements with the collector, allow him credit 
for the amount so certified : Provided, that if the auditor or such 
other proper authorities or persons shall have reason to believe 
that the amount stated in said certificate is not correct, or that the 
allowance was illegally made, he or they shall return the same for 
correction ; and when the same shall appear to be necessary, in the 
opinion of the auditor or such other proper authorities or persons, 
he or they shall designate and appoint some competent person to 
examine the collector's books and settlement, and the person so 



440 REVENUE. [DH «~L 

designated and appointed shall have access to the collector's books 
and papers, appertaining to such collector's office or settlement, 
for the purpose of making such examination. [See § 242. 

238. Final order— Corrections, etc.] § 238. In all cases when 
the adjustment is made with the county clerk, the county board 
shall, at the first session thereafter, examine such settlement, and 
if found correct shall enter an order to that effect; but if any 
omission or error is found, said board shall cause the same to be 
corrected, and a correct statement of the facts in the case for- 
warded to the auditor and other proper authorities or persons, who 
shall correct and adjust the collector's accounts accordingly. 

PARTIAL SETTLEMENT OF COUNTY COLLECTORS. 
Section. 

239. April statement to clerk. 

240. Clerk to notify auditor, etc., amount due them. 

241. April payment to state treasurer. 

242. Effect of failure of collector to obtain judgment. 

243. April payment to local authorities. 

244. To report and pay over to local authorities every ten days. 

245. Failure to make report — Suit. 

246. Failure to account and pay over — Suit. 

239. April statement to clerk.] § 239. On or before the 
tenth day of April, annually, after he has made settlement with 
town or district collectors, the county collector shall make a sworn 
statement, showing the total amounts of each kind of tax received 
by him from town or district collectors, and the total amount of 
each collected by himself — which statement shall be filed in the 
office of the county clerk. [As amended by act approved May 
3, 1873. 

240. Clerk to notify auditor, etc., amount due them.] § 240. 
The clerk shall immediately, on the receipt of such statement, 
certify to the auditor and to other proper authorities or persons, 
the amount for which the collector is required to settle with them 
severally. 

241. Aprilj payment to state treasurer.] § 241. The county 
collector shall, on or before the fifteenth day of April following, pay 
over to the state treasurer the taxes in his hands, payable to the 
state treasury, as shown by the statement required by section 239, 
of this act. [As amended by act approved May 3, 1873. 

242. Effect of failure of collector to obtain judgment] § 242. 
The failure of any county collector to obtain judgment shall not 
prevent him from presenting his statement of credits, and making 
settlement for taxes and special assessments in his hands, at the 
time required by this act ; but if, from no fault of the collector, he 
fail to obtain judgment and sale of delinquent real estate at the 



DIV. VII.] FINAL SETTLEMENT OF COUNTY COLLECTOR. 441 

time required by this act, shall be allowed, in his settlements, a 
temporary credit for the amount of taxes and special assessments 
in such delinquent list, which delinquent taxes and special assess- 
ments shall be accounted for and paid immediately after sale is 
had. [See § 232. 

243 April payment to local authorities.] § 243. He shall, 
within the same time, pay over to the other proper authorities or 
persons, the amounts so shown to be in his hands, and payable to 
them. 

244. To pay cities, etc., every ten days.] § 244. The county 
collector shall report and pay over the amount of tax and special 
assessments, due to towns, districts, cities, villages, corporations 
and persons, collected by him on delinquent property, at least 
once in every ten days, when demanded by the proper authorities 
or persons. [See Be v. Stat., ch. 24, § 113. 

245. Failure to make report— Suit.] § 245. Any county col- 
lector failing to make the reports and payments hereinbefore re- 
quired, for five days after the time specified for that purpose, or 
after demand made as aforesaid, the auditor or such other authori- 
ties or persons, may bring suit upon the collector's bond. 

246. Failure to account and pay over— Suit.] § 246. If any 
county collector fails to account and pay over as required in the 
preceding sections, his office may be declared vacant by the county 
board, or by any court in which suit is brought on his official bond. 

FINAL SETTLEMENT OF THE COUNTY COLLECTOR FOR STATE TAXES. 
Section. 

247. Manner of making settlement, etc. 

248. Duplicate statement — Correction. 

249. Over-payment refunded. 

250. How paid into treasury — Duplicate receipts. 

251. Interest on money due state. 

252. Auditor's certificate of settlement — Filing same. 

247. Maimer of making settlement.] § 247. The county clerk 
shall make out and deliver to the county collector, as soon as ad- 
justment is made with the county board or county clerk, annually, 
the statements, certificates and lists appertaining to the settlement 
of the accounts of such collector ; which statement, certificates and 
lists shall be made out in proper form, under his seal of office, on 
blanks which it is hereby made the duty of [the] auditor to fur- 
nish, annually, for that purpose. The collector shall deliver the 
same at the office of the auditor, and make a final settlement of 
his accounts, and pay the amount due the state into the state 
treasury on or before the first day of July next after receiving the 
tax books : Provided, that in all cases where the statements, cer- 
tificates and lists appertaining to the final settlement of a collector 



442 REVENUE. [DIV. VIL 

are on file with the auditor, on or before the first day of July, the 
auditor shall not charge interest on the balance found due on the 
account of such collector, for fifteen days after mailing said audi- 
tor's statement showing balance due the state on such collector's 
account : Provided, further, that this section shall not be held to 
relieve any collector from the payment of interest charged on his 
account by reason of failure to make payment to the state, at other 
time or times, as required by this or any other act of the general 
assembly of this state. [As amended by act approved May 3, 1873. 

248. Duplicate statement to auditor.] § 248. The county clerk 
shall furnish a duplicate copy of said statement, duly certified, 
whenever requested so to do by the auditor. 

Correction.] If the statement of credits herein required, or any 
of the items therein, are objected to by the auditor, he shall return 
the statement to the county clerk, stating his objections, and said 
clerk shall examine and correct or explain the same satisfactorily, 
and return the statement to said auditor. 

249. Over-payment refunded.] § 249. If any collector shall 
have paid, or may hereafter pay, into the state treasury, any 
greater sum or sums of monev than are or may be legally and 
justly due from such collector, after deducting abatements and com- 
missions, the auditor shall issue his warrant for the amount so 
overpaid, which shall be paid out of the fund or funds so overpaid, 
on said warrant. 

250. How paid into treasury— Duplicate receipt.] § 250. 

Upon ascertaining the amount due to the state from any collec- 
tor or other person, the auditor shall give such person a state- 
ment of the amount to be paid, and upon the presentation of 
such statement to the state treasurer, and the payment of the 
sum stated to be due, the treasurer shall give duplicate receipts 
therefor, one of which shall be filed in the auditor's office, and 
entered in a book to be kept for that purpose, and the other shall 
be countersigned by the* auditor and delivered to the person 
making the payment ; and no payment shall be considered as 
having been made until the treasurer's receipt shall be counter- 
signed by the auditor as aforesaid. 

251. Interest on money due state.] § 251. Any collector fail- 
ing to pay into the state treasury the amount due to the state, on 
his account for state and other taxes, at the time or times re- 
quired by this act, shall pay interest at the rate of ten per cent, 
per annum, from the time the same became due under this act, 
until the same is paid ; and it shall be the duty of the auditor 
to charge such interest to the account of every collector failing 
to pay at the time cr times required in this act. In no case 



DIV. TIL] LIENS OF TAXES 443 

shall the auditor be permitted to remit such interest, unless sat- 
isfactory evidence from the county board is presented to him, 
showing, by official action taken by such board, lawful cause 
why the collector could not pay over, in part or in whole, the 
amount due on such collector's account with the state. 

252. Auditor's certificate of settlement— Filing same.] §252. 
Upon the final settlement of any account with the state, the au- 
ditor shall give the collector duplicate certificates, under his seal 
of office, setting forth that said collector has settled and paid 
into the state treasury the full amount due from him on said 
account ; and it shall be the duty of the collector to file one of 
said certificates in the office of the county clerk, on or before 
the first day of August next after receiving the tax books. If 
any collector shall neglect or refuse to file one of said certificates 
as above required, the county clerk shall leave a written notice 
at the office of said collector, requiring him to appear before the 
county court, at the September term thereof, and show cause 
why he has not filed the certificate aforesaid ; and if the collec- 
tor shall not show that he has paid over the full amount due 
from him, and made a final settlement with the state and county, 
or that he has a lawful excuse for failing to do so, his office as 
collector and treasurer shall be declared vacant by said court, 
and the same filled as in other cases of vacancy by reason of 
death or otherwise. 

LIENS OF TAXES. 

253. Of tax on real estate.] § 253. The taxes upon real 
property, together with all penalties, interests and cost, that may accrue 
thereon, shall be a prior and first lien on such real property, superior 
to all other liens and incumbrances, from and including the first dav of 
May in the year in which the taxes are levied until the same are paid; 
which lien may be foreclosed in equity in any court of competent juris- 
diction in the name of the people of the state of Illinois, whenever the 
taxes for two or more years, upon the same description of property, 
shall have been forfeited to the state, and may be sold under the order 
of the court by the person having authority to receive state and county 
txixes, with the same notice to interested parties and right of redemption 
from said sale, as is now provided by law, and in conformity with sec- 
tions four and five of article IX of the constitution of this state. 
In proceedings to foreclose the tax lien on any real property, the 
amount due on the collector's books against the said property shall be 
prima facie evidence of the amount of taxes against ^the said real 
property. When any taxes are collected in any such foreclosure pro- 
ceedings, they shall be paid to the county collector, to be distributed 
by him to the respective authorities entitled thereto. [As amended, 188L 

fl) Tne payment of taxes toy any person extinguishes tliem, and if a voluntary 
hi tempt is made to pay them a second time, the last will be considered a gratuity to the taxing 
pu rer. Morrison v. Kelley, 22 111. R., 626. 



444: BEVENUE. Fdit. vil 



254. Tax on personalty.] § 254. The taxes assessed upon 
personal property shall be a lien upon the personal property of 
the person assessed, from and after the time the tax books are 
received by the collector. 

255. Real and personal tax.] § 255. Personal property shall 
be liable for taxes levied on real property, and real property 
shall be liable for taxes levied on personal property ; but the 
tax on personal property shall not be charged against real prop- 
erty, except in cases of removals, or where said tax cannot be 
made out of the personal property ; but the tax on real property 
may be made out of personal property, at any time after the tax 
becomes due, by any collector having the tax books in his hands, 
by distraint and sale, in the manner provided in this act : Pro- 
vided, that judgment against real property, for non-payment of 
taxes thereon, shall not be prevented by showing that the owner 
thereof was possessed of personal property subject to distraint; 
and no person shall be subject to have his personal property 
distrained and sold for tax on real estate, which may have been 
listed and assessed in his name, when he makes oath, or other- 
wise satisfies the collector, that he did not own such real prop- 
erty on the preceding first day of May.(l) [See § 183. 

256. Lien in favor of agent, etc., for tax paid.] § 256» 
When property is assessed to any person as agent for another, or 
in a representative capacity, such person shall have a lien upon 
such property, or any property of his principal in his possession, 
until he is indemnified against the payment thereof, or, if he has 
paid the tax, until he is reimbursed for such payment. 



A tax receipt which erroneously states the number of acres in a tract of land 
but describes a legal sub-division, is good; the statement of the quantity is immaterial. Morri 
son et al. v. Norman, et al., 47 111. R., 478. 

The receipt describing the premises on which the taxes were paid, by No. 5 placed in a col 
umn headed " lot," and 9 in the next column headed " block," then followed the figure 8 in th» 
column headed " lot," but with no number opposite thereto in the column headed " block." 
Held, that this description was sufficient to justify the inference, nothing appearing to the con- 
trary, that lot was in the same block as lot 5. Daniels v. Barso, 40 111. R., 307. 

An affidavit of loss of receipts might authorize proof of their contents, but not the In 

troduction of the collector's book to prove the word "paid" entered on them, the contents o* 
such receipts. Irwin v. Miller, 23 111. R., 401. 

"W here taxes have been paid upon property legally liable to taxation, they cannot 
be recovered back, although the assessment was informal and irregular, and not strictly in con- 
formity with the statute, or the statute itself defective in respect to the manner in which th« 
assessment is directed to be made. Board of Supervisors of Stephenson Co. v. Manny, 56 111. R., 160 

(1) Personal property is subject to distraint and sale for taxes assessed upon 
real estate, if the same is still in force. It has been supposed that the amendment to sectioi 
137, passed in 1873, operated as a repeal of section 255. I do not concur in this view. Opinio* 
Att'y Gen. Edsall, March 22, 1877. 

On the foregoing subject Auditor Needles says : " The intention of the General Assembly wat 
bo manifest in its amendment Ito Sec. 137, that the then auditor at once ruled that personal 

Eroperty could not be distrained for tax on real estate, by town or district collectors, and sucb 
as continued to be the ruling of this office." Auditor Needles. Dec. 31, 1877. 



DIV. VH.] SUITS AGAINST COLLECTORS. 445 



WHO NOT ELIGIBLE AS BONDSMAN. 

Section. 

257. Certain officers. 

257. Certain officers.] § 257. No judge of the county court, 
chairman of the county board, clerk of the circuit court, county 
clerk, sheriff, deputy sheriff or coroner shall be permitted to be 
a surety on the bond of a county, town, district or deputy collec- 
tor or county treasurer. 

LIABILITY ON BONDS. 
Section. 

258. Specified. 

258. Specified.] § 258. The bond of every county, town or 
district collector shall be held to be security for the payment by 
such collector to the state treasurer, county treasurer, and the 
several cities, towns and villages, and proper authorities and per- 
sons, respectively, of all taxes and special assessments which may 
be collected or received by him on their behalf, by virtue of any law 
in force at the time of giving such bond, or that may be passed or 
take effect thereafter. 



SUITS AGAINST COLLECTORS. 



Section. 



259. By auditor. 

260. Jurisdiction — Power of court. 

261. Proceedings in suit on bond by others. 

262. When bond sued by city, town, etc. 

263. Fees when state sue?. 

259. Suit by auditor.] § 259. Upon the failure of any col- 
lector to make settlement with the auditor, or to pay money into 
the state treasury, it shall be the duty of the auditor to sue the col- 
lector and his sureties upon the bond of such collector, or to sue the 
collector in such form as may be necessary, and take all such pro- 
ceedings, either upon such bond or otherwise, as may be necessary 
to protect the interests of the state. [As amended by act approved 
March 24, 1874. 

260. Jurisdiction— Power of court.] § 260. When suit is in- 
stituted in behalf of the state, it may be in either division of the 
supreme court, or in the Sangamon county circuit court, or in any 
court of record in this state having jurisdiction of the amount; 
and process may be directed to any county in the state. In any 
proceeding against any officer or person whose duty it is to collect, 
receive, settle for or pay over any of the revenues of the state,whether 
the proceeding be by suit on the bond of such officer or person, or 



446 REVENUE. [DIY. YIL 

otherwise, the. court in which such proceeding is pending shall 
have power, in a summary way, to compel such officer or person 
to exhibit, on oath, a full and fair statement of all moneys by him 
collected or received, or which ought to be settled for or paid over, 
and to disclose all such matters and things as may be necessary to 
a full understanding of the case ; and the court may, upon hearing, 
give judgment for such sum or sums of money as such officer or 
person is liable in law or equity to pay. And if, in a suit upon the 
bond of any such officer or person, he or his sureties, or any of 
them, shall not for any reason be liable upon the bond, the court 
may, nevertheless, give judgment against such officer or person, or 
against such officer and such of his sureties as are liable, for the 
amount he or they may be liable to pay, without regard to the form 
of the action or pleadings. [As amended by act approved March 
24, 1874. 

261. Proceedings in suit on bond by others.] § 261. When 
suit has been instituted by the auditor, any party aggrieved may 
proceed under the judgment obtained, upon the bond, by writ of 
inquiry of damages, as in other cases upon bonds. [As amended 
by act approved March 24. 1874. 

262. When bond sued by city, town, etc.] § 262. Cities, 
towns, villages or corporate authorities, or persons aggrieved, may 
prosecute suit against any collector or other officer collecting or 
receiving funds for their use, by suit upon the bond, in the name 
of the People of the State of Illinois, for their use, in any court 
of competent jurisdiction, whether the bond has been put in suit 
at the instance of the auditor or not; and in case of judgment 
thereon the auditor may, if he shall so elect, have a writ of inquiry 
of damages for any amount that may be due to the state treasury 
from such officer. Cities, towns, villages and other corporate 
authorities or persons, shall have the same rights in any suits or 
proceedings in their behalf as is provided in case of suits by or in 
behalf of the state. [As amended by act approved March 24, 1874. 

263. Fees when state sues.] § 263. The state shall pay like 
fees as are or may be allowed by law in suits between individuals ; 
and in all cases when the state is plaintiff, it shall advance and 
pay such fees in like manner as individuals are required to advance 
and pay fees; and when the state becomes the purchaser of real 
property sold on execution, for any debt due the state, the officer 
selling such real estate shall be entitled to like commissions as 
he would have been entitled to had such property been purchased 
by an individual — said fees and commissions to be paid on the 
warrant of the auditor, out of any money in the treasury appropri- 
ated for that purpose ; and when such fees are collected they shall 
be ^aid into the state treasury. 



DIV. yil] sale of real estate on execution. 447 



SALE OF REAL ESTATE ON EXECUTION IN BEHALF OF THE STATE— RE- 



DEMPTION. 

Section. 



264. Notice of levy given to auditor-He to purchase in-Redemption. 
26o. Payment of money collected. ^ ^ 

266. Where real property not redeemed, timber, etc. 

264. Notice of levy given auditor— He to purchase in— Re- 
demption.] § 264. When real estate shall be levied upon to satisfy 
any judgment m favor of the state, it shall be the duty of the offi- 
cer making such levy, to transmit by mail, to the auditor, at least 
twenty days before the day of sale, a correct statement, showing 
the description and value of said property, in cash; the truth of 
said statement shall be attested by the oath of said officer. Said 
officer shall at the same time, furnish the auditor with an abstract 
oi title ot the property levied upon, the expense thereof to be 
charged and collected as costs. And the auditor is hereby author- 
ized and required to purchase, in his name, for the use of the People 
oi the btate of Illinois, at a price not exceeding two-thirds of said 
value, so much of said property as may be required to pay the 
amount of the judgments and costs aforesaid ; and it shall be the 
duty oi the officer making such sale to forward to the auditor a 
certificate of purchase, and make his return, as required in other 
cases of sales on execution. Any person desiring to redeem all or 
part of said property from such sale, shaU pay the amount of re- 
demption money into the state treasury, and thereupon the auditor 
shall indorse such payment on the back of the certificate of pur- 
chase aforesaid, and deliver it to the person so paying, which shall 
have the same effect as redemptions have in other cases : but no 
real estate purchased as aforesaid shall be considered redeemed 
from such sale until the redemption money is paid into the state 
treasury, Such certificate may be recorded in the recorder's office 
ot the county in which such real property is situated, and shall 
operate as a release of record of such property. 

265. Payment of money collected.] § 265. All moneys received 
by any sheriff or other officer, on execution, in behalf of the state, 
shall be paid by such officer to the state treasurer, or to the col- 
lector of his county, as may be directed by the auditor, within 
twenty days after demand is made by said auditor. Said demand 
may be made by any person authorized by the auditor. 

266. When real property not redeemed— Timber, etc.] § 266. 
If any real estate, purchased by the state on execution, shall not 
be redeemed within the time required by law, it shall be the duty 
of the auditor to obtain a deed or deeds therefor, which he shall 
™Ta ll f r COrd ^ d l n a book ke Pt ^r that purpose in his office ; 
and shall take such steps as he shall deem necessary to protect 
the timber, or fixtures thereon from being lost or destroyed 



448 REVENUE. [DIY. VIL 



DOUBLE PAYMENT AND ASSESSMENT — REFUNDING. 

Section. 

267. Payment by different claimants, return, etc. 

268. Double assessment or payment— Refunding. 

267. Payment by different claimants— Return, etc.] § 267. 
Whenever the taxes on the same property shall have been paid 
more than once, for the same year, by different claimants, the 
county collector shall make a return to the county clerk of all such 
surplus taxes so received by him, together with the names of the 
several claimants thus paying. Certified copies of said return, or 
of record thereof, by the county clerk, or of the county clerk's re- 
port, by the auditor, shall be 'prima facie evidence in all courts, 
when the same shall come in question, of the payment of tax on 
the property therein described for the year or years therein men- 
tioned. The county clerk shall make a full record of all such 
cases, and transmit a certified copy thereof to the auditor, who 
shall charge such collector with the portion of such surplus taxes 
belonging to the state. The town or district collectors shall re- 
port such cases to the county collector, and he to the county clerk. 

268. Double assessment or payment— Refunding.] § 268. If 
any real property shall be twice assessed for the same year, or 
assessed before it becomes taxable, and the taxes so errone- 
ously assessed shall have been paid, either at sale or oth- 
erwise, or have been twice paid by different claimants, the county 
board, on application of the person paying the same, or his agent, 
and being satisfied of the facts in the case, shall cause the state 
and county taxes to be refunded pro rata by the state and county ; 
and the city and incorporated town or village taxes and special 
assessments, by the city or incorporated town, village or other 
proper authorities or persons. If any county, town or district 
collector shall receive the taxes or special assessments properly 
due on any real property, and the same shall afterwards be sold 
for said taxes or special assessments, he shall refund to the pur- 
chaser thereof, if application be made within three years from the 
date of said sale, double the amount of purchase money and all 
expenses of advertising said real estate under this act, requiring 
real estate purchased at tax sales to be advertised, including 
costs of deeds. Any collector neglecting or refusing to pay as 
required by this section, shall be liable to the county, or person 
in interest, in an action of debt in any court having jurisdiction. (1) 
\See § 213. 

Q) Tlie evidence on which the State tax is refunded is the certificate of the COURtf 

•Sierk, showing the action of the board of supervisors. The certificate should describe the 
.property and show the years tax sold for or paid, or both, the amount of State and county tai 
separate, and the cause of error. Ooinion Auditor Lippincott, Dec. 28. 1869. 



DIT. VII.] OTHER DUTIES OF AUDTTOR. 449 



WHEN RECORDS ARE DESTROYED. 

Section. 
269. New assessments. 

269. New assessment] § 269. When assessment rolls or 
collector's books, in whole or in part, of any county, town, city, 
incorporated village or district, shall "be lost or destroyed by any 
means whatever, a new assessment, or new books, as the case may 
require, shall be made under the direction of the county board. 
Said board shall, in such cases, fix reasonable times and dates for 
performing the work of assessment, equalization, levy, extension 
and collection of taxes, and paying over the same, or making 
new books, as the circumstances of the case may require. All 
the provisions of this act shall apply to the dates fixed by the 
county board, in the same manner that they apply to the dates 
for similar purposes, as fixed by this act. The county board is 
hereby fully empowered to select and appoint persons, where it 
may find the same necessary, to carry into effect the provisions 
of this section. 

OTHER DUTIES OP AUDITOR. 
Section. 

270. When a locality does not pay its share of tax. 

271. Auditor may sell property bought in by state. 

272. Abstracts — U. S., canal and Illinois Central Railroad lands. 

273. Forms — Instructions — Opinion. 

274. Act published. 

275. Swamp lands. 

270. When a locality does not pay its share of tax.] § 270. 

Whenever it shall come to the knowledge of the auditor that any 
county, township, city, district or town, or any well defined lo- 
cality thereof, or any particular class of property therein, has 
heretofore been or may hereafter be released, from any cause 
whatever, from its just proportion of state taxes, said auditor 
shall cause suit to be commenced in an action of debt, in the 
name of the People of the State of Illinois, either against the 
municipality or against the property unjustly released from taxa- 
tion, or the owners thereof, for the amount of such tax, in the 
supreme court of this state, in either division thereof; and when 
judgment may be recovered in any such case, the auditor shall 
levy a rate of tax on the equalized valuation of all property or 
particular class of property in such county, township, city, dis- 

After a deed has been given, erroneous sales can only b« cancelled by the voluntary return 
of the deed. Opinion Auditor Lippincott, Aug. 20, 1869. 

In no case can the State be compelled to refund a tax voluntarily paid, upon a 
«laim of technical illegality in the assessment, pfjvided the property on which it was ^aid wai 
legally taxable- People exreLv. Miner, 46 I1L R., 374. 



450 KEVENTJE. [D1V. VIL. 

trict, town or locality, as the case may be, as will pay the stater 
the amount of such judgment and costs ; and it shall be the duty 
of the county clerk of the proper county to extend such rate of 
tax with the state tax of the year directed in the auditor's certifi- 
cate. Any county clerk neglecting or refusing to extend such rate, 
as certified to him by the auditor, shall be removed from his office, 
and in addition thereto shall be subject to a fine of $5,000, and 
damages caused by such neglect or refusal, to be sued for by the 
auditor, in an action of debt, in the name of the People of the 
State of Illinois, in either division of the supreme court of this 
state : Provided, that in cases where the auditor and proper local 
authorities of the proper municipality, can arrange to make such 
levy to reimburse the state in such cases, without suit, the audi- 
tor is hereby authorized to pursue such course. 

271. Auditor may sell property bought in by state.] § 271. 
The auditor is authorized to sell, transfer and convey, by deed r 
any and all real estate that may have been heretofore, or may be 
hereafter, purchased or taken in payment, to satisfy any judg- 
ment or any execution in favor of the state, by this state or by 
any officer of this state, for the benefit and use of the state, to 
any person or persons who may pay into the state treasury tbe 
full amount paid by the state for said property, including costs, 
and six per cent, interest thereon, from the date of said sale to 
the time of such payment : Provided, that the sale of the real 
estate, in part or in whole, may be made at such price, not less 
than the price paid for such part or whole of the property, as 
the case may be, as the judge of the county court, chairman of 
the county board, and the sheriff of the county in which the 
estate is situated, shall certify the same to be worth; or, if not 
sold in one year from and after the expiration of the time of re- 
demption now or hereafter allowed by law, said property may, if 
the auditor thinks the valuation fair, be sold by said auditor upon 
and for any valuation of said property which may be appraised 
and certified by the judge of the county court, chairman of the 
county board and sheriff of the county in which such property is 
situated. 

272. Abstracts, United States, Canal and Illinois Central rail- 
road lands.] § 272. On the first day of May in each year, or as 
soon thereafter as practicable, the auditor shall obtain from the 
United States land office in this state abstracts of the lands en- 
tered and located, and not previously obtained, and shall, at the 
same time, obtain from the Illinois Central railroad, and Canal 
offices, abstracts of the Central railroad and Canal laods sold. 
Upon the receipt of said abstracts, che auditor shall cause them 
to be transcribed into the tract bocks in bis office, and shall, with- 



DIV. Vn.] OMITTED PROPERTY — SAVING CLAUSES. ^51 

out delay, cause abstracts of the lands in each county, including 
school lands reported to his office as having been sold, to be made 
out and forwarded by mail to the county clerks of the several 
counties ; and said clerks shall cause such abstracts to be trans- 
cribed into the tract book, and filed in their office. The expense 
of procuring and furnishing the abstracts required by this section, 
shall be paid by the auditor out of the appropriation for the ex- 
penses of his office. 

273. Forms— Instructions— Opinion.] § 273. It shall be the 
duty of the auditor to make out and forward to each county clerk, 
from time to time, for the use of such clerks and other officers, 
suitable forms and instructions ; and all such instructions shall be 
strictly complied with by the officers in the performance of their 
respective duties. He shall give his opinion and advice on all 
questions of doubt as to the true intent and meaning of the pro- 
visions of this act.(l) [See § 289. 

274. Act published.] § 274. The auditor shall, as soon as 
practicable after the passage of this act, cause the same to be cor- 
rectly printed in pamphlet form, and transmit to each county clerk 
a sufficient number of copies thereof for the use of the several 
county, town and district officers ; and said clerk shall deliver the 
same to the proper officers. 

275. Swamplands.] §275. The county clerks of the several 
counties shall, annually, report to the auditor a list of the swamp 
and overflowed lands sold in their respective counties for the year 
ending on the first day of May, and the auditor shall enter the 
same in the tract books of his office. 

OMTTTED PROPERTY — SAVING CLAUSES. 
Section. 

276. When discovered listed, and tax added—Personal tax. 

277. Tax not collected added to subsequent year. 

278. Not prior to date of ownership— Notice. 

279. Special assessments— Return limited. 

280. Failure to complete assessment in time not to vitiate. 

281. Informality not to vitiate. 

282. Failure to deliver tax books not to vitiate. 

283. Wrong name not to vitiate. 

276. When discovered listed, and tax added— Personal tax.] 

§ 276. If any real or personal property shall be omitted in the 
assessment of any year or number of years, or the tax thereon, 

(1) The opinion* given bjr an officer whose duty it is by law to give such opin- 
ion, in regard to the intent or meaning ot a law, as a general rule, will be regarded farorably 
by the courts, and upheld unless clearly erroneous. 

The forms and instructions of the auditor, made out in conformity to law, must be used by 
the revenue office™. But, if the auditor direct statistical financial or other items of information 
not required by law, the auditor cannot enforce the performance of such burden by rejecting 
the return, duly made out in conformity to law. Stark Co. Bank. v. McGregor, 6 Ohio St R.. 45 



452 flEVENUE. [DIV. VH. 

for which such property was liable, from any cause has not been 
paid, or if any such property, by reason of defective description 
or assessment thereof, shall fail to pay taxes for any year or 
years, in either case the same, when discovered, shall be listed 
and assessed by the assessor and placed on the assessment and 
tax books. The arrearages of tax which might have been as- 
sessed, with ten per cent, interest thereon, from the time the 
same ought to have been paid, shall be charged against such 
property by the county clerk. It shall be the duty of county 
clerks to add uncollected personal property tax to the tax of any 
subsequent year, whenever they may find the person owing such 
uncollected tax assessed for any subsequent year. [See § 77, 95. 

277. Tax not collected added to subsequent year.] § 277. If 
the tax or assessment on property liable to taxation is prevented 
from being collected for any year or years, by reason of any 
erroneous proceeding or other cause, the amount of such tax or 
assessment which such property should have paid may be added 
to the tax on such property for any subsequent year, in separate 
columns designating the year or years. [As amended by act ap- 
proved May 3, 1873. 

278. Not prior to date of ownership— Notice.] § 278. No such 
charge for tax and interest for previous years, as provided for in 
the preceding section, shall be made against any property prior 
to the date of ownership of the person owning such property at 
the time the liability for such omitted tax was first ascertained: 
Provided, that the owner of property, if known, assessed under 
this and the preceding section, shall be notified by the assessor 
or clerk, as the case may require.(l) 

279. Special assessment— Return limited.] § 279. When any 
special assessment is not returned to the county collector on or 
before the first day of March next after it is due, the same may 
be returned on or before the first day of March in the succeeding 
year ; and, if not then returned, it shall be considered barred, 
unless return is prevented by an injunction or order of court; 
and the time such return is thus prevented shall be excluded from 
the computation of such time. 

280. Failure to complete assessment in time not to vitiate.] 

§ 280. A failure to complete an assessment in the time required 

(1) Under Sec. 380 ot the Revenue Law, no objection can be made to the mode 
In which an assessment for taxation is made. If the property assessed is subject to taxation, 
and is assessed no more than its ratable share of taxes, it matters not whether the assessment 
was made in the mode pointed out by the statute or not Pacific Hotel Co, v. Lieb et al., 83 11L 
R., 602. 

A failure to complete an assessment, or to return the sam in the time required by 
the act, does not vitiate the same, but it must be held as legal and valid as if completed is 
time. Wright v. The People ex reL, 87 111. R., 582 



DIY. VII. ] PENALTIES OF OFFICERS. 453 

by this act shall not vitiate such assessment, but the same shall 
be as legal and valid as if completed in the time required by law. 

281. Informality not to vitiate.] § 281. No assessment of 
real or personal property, or charge for taxes thereon, shall be 
considered illegal on account of any informality in making the 
assessment, or in the tax lists, or on account of the assessments 
not being made or completed within the time required by law. 

282. Failure to deliver tax books not to vitiate.] § 282. Any 
failure to deliver the collector's books within the time required 
by this act, shall in no way affect the validity of the assessment 
and levy of taxes, but in all cases of such failure, the assessment 
and levy of taxes shall be held to be as valid and binding as if said 
books had been delivered at or within the time required by law. 

283. Wrong name not to vitiate.] § 383. No sale of real es- 
tate for taxes shall be considered invalid on account of the same 
having been charged in any other name than that of the rightful 
owner. 

WHO MAT ADMINISTER OATHS. 
Section. 
284. Officers enumerated. 

284. Officers enumerated.] § 284. Any oath, authorized to be 
administered under this act, may be administered by an assessor 
or deputy assessor, or by any other officer having authority to 
administer oaths. 

PENALTIES OF OFFICERS. 
Section. 

285. For delivering or receiving books before collector's bond filed. 

286. Collector — Neglect to obtain judgment, etc. 

287. Failure to do any duty under this act. 

288. Refusal by clerk, assessor, collector and other officers to do duty. 

285. Delivering books before collector's bond filed.] § 285. 

If any county clerk shall deliver the tax books into the hands 
of the county collector, or if any collector shall receive said 
books or collect any taxes until such collector's bond has been 
approved and filed, as required by this act, said clerk and col- 
lector, and each of them, shall be liable to a penalty of not less 
than $500, and all damages and costs, to be recovered in an action 
of debt ; and the auditor shall bring suit therefor, in the name 
of the People of the State of Illinois — the amount recovered on 
such fines to be paid into the state treasury as revenue fund. 
Nothing in this section shall be construed as relieving the secu- 
rities of a collector from liabilities incurred under a bond not 
approved and filed by the auditor. [See § 135, 145. 

286. Collector— Neglect to obtain judgment, etc.] § 286. If 
any collector shall, by his own neglect, fail to obtain judgment 



i 



454 REVENUE, [dIV. Vt*- 

at the May term of the county court, or shall fail to present his 
list of delinquencies on personal property, or errors in assess- 
ment of real estate, at the time required by this act, he shall lose 
the benefit of any abatement to which he might have been en- 
titled, and shall pay to the state and county the full amount 
charged against him, after deducting the fees allowed by this act 
for collecting and paying over taxes. If the county court is not 
held at the May term, the collector shall have further time to 
pay over the amount due on the delinquent list. 

287. Failure to do any duty under this act] § 287. If any of- 
ficer shall fail or neglect to perform any of the duties required 
of him by this act, upon being required so to do by any person 
interested in the matter, he shall be liable to a fine of not less 
than $10 nor more than $500, to be recovered in an action of 
debt in the circuit court of the proper county, and may be re- 
moved from office at the discretion of the court; and any officer 
who shall knowingly violate any of the provisions of this act, 
shall be liable to a fine of not less than $10 nor more than $1,000, 
to be recovered in an action of debt, in the name of the People 
of the State of Illinois, in any court having jurisdiction, and may 
be removed from office at the discretion of the court, and said 
fines, when recovered, shall be paid into the county treasury. 

288. Refusal by clerk, assessor or other officer to do duty.] § 

288. Every county clerk, assessor, collector or other officer who 
shall in any case refuse or knowingly neglect to perform any duty 
enjoined upon him by this act, or who shall consent to or con- 
nive at any evasion of its provisions, whereby any proceeding re- 
quired by this act shall be prevented or hindered, or whereby 
any property required to be listed for taxation shall be unlaw- 
fully exempted, or the same be entered upon the tax list at less 
than its fair cash value, shall, for every such offense, neglect or 
refusal, be liable, on the complaint of any person, for double the 
amount of the loss or damage caused thereby, to be recovered in 
an action of debt, in the name of the People of the State of Illi- 
nois, in any court having jurisdiction, and may be removed from 
his office at the discretion of the court. 

COUNTY TO FURNISH BOOKS AND BLANKS. 

Section. 
289. Clerk to procure them. 

289. Clerk to procure them.] § 289. The county board shall 
direct the county clerk to procure all necessary books and blanks 
required by this act to be used in the assessment of property 
and collection of taxes, at the expense of the county. [See § 
^V, also, "Counties," §26. 



DIV. VII.] KEEPING ACCOUNTS OF COUNTY FUNDS. 455 



COUNTY FUNDS — MANNER OF KEEPING ACCOUNTS THEREOF. 

Section. 

290. By collector, etc. 

291. By county clerk, etc 

290. By collector, etc.] § 290. The county collector shall, on 
the first of every month, report to the county clerk, in writing, 
the amount of county tax received by him during the preceding 
month, showing what amount of said tax was received in money, 
and what amount in county orders and jury certificates. The 
county collector shall keep his account as collector of taxes sepa- 
rate from his account as county treasurer. He shall credit nis 
amount as collector with the amount of his monthly reports to the 
county clerk, and with the amount of insolvencies, removals, errors, 
forfeitures, and other credits allowed him on settlement with the 
county board; and as county treasurer he shall charge himself 
with the amount shown in his monthly report to the county clerk, 
as aforesaid, and such other amounts as may come into his hands 
as county treasurer ; and he shall, as such treasurer, at the close 
of each month, cancel the county orders and jury certificates in 
his hands, and return the same with a descriptive list, giving num- 
bers and amounts properly footed, to the county clerk, who shall 
carefully compare and file the same in his office, subject to the 
order of the county board, and give the ^treasurer a receipt for the 
same ; which receipt shall be evidence* upon which the county 
treasurer shall take credit in his accounts as such treasurer, with 
the county, subject to the approval of the county board. The 
county board shall examine such account and vouchers, at such 
time or times, by committee or otherwise, as may be deemed 
requisite. 

291. By clerk, etc] § 291. Each county clerk shall keep an 
account with the county collector, charging him with the amount 
of county tax placed in his hands for collection, and with the 
county tax received by him for sales and redemptions of forfeited 
property, and with any other funds, belonging to the county, that 
shall come into the collector's hands ; and shall credit him with 
the amounts ascertained as required in the preceding section, 
charged to the county treasurer's account monthly; also, with 
amount of county tax on insolvencies, removals, errors, forfeited 
property, etc., whenever ascertained in the manner required by 
this act. The county clerks shall also keep a treasurer's account 
with the county treasurer of their respective counties. The treas- 
urer shall be charged with the amount of money, county orders 
and jury certificates reported in the collector's monthly statements 
fo -Quired to be made in the preceding section, and all amounts paid 



456 REVENUE. [DIY. VII. 

to the county treasurer from other sources than the county revenue 
tax ; and it is hereby made the duty of all persons paying money 
into the county treasury, for all purposes except the county taxes, 
to first obtain from the county clerk an order on the treasurer to 
receive the same ; and the treasurer shall give the person so pay- 
ing duplicate receipts therefor, one of which shall be countersigned 
by the county clerk, and retained by the person paying over the 
amount, and the other filed in the county clerk's oflice, and the 
amount thereof charged against the treasurer. The treasurer's 
account shall be credited, monthly, with the amount of county 
orders and jury certificates cancelled and filed in the county clerk's 
oflice, as required in the preceding section. 

DEFINITIONS. 

Section. 

292. Words and phrases. 

293. Power of county court, until, etc 

292. Words and phrases.] § 292. The words and phrases fol- 
lowing, whenever used in this act, shall be construed to include in 
their meaning the definitions set opposite the same in this section, 
whenever it shall be necessary to the proper construction of this act. 

1st, Assessor — Assessors. — Town, district and deputy assessors. 

2d. Auditor. — Auditor of public accounts. 

3d. Bank — Banker — Broker — Stock-jobber.-— Whoever has 

money employed in the business of dealing in coin, notes or bills 
of exchange, or in the business of dealing in or buying or selling 
any kind of bills of exchange, checks, drafts, bank notes, promis- 
sory notes, bonds or other writing obligatory, or stocks of any 
kind or description whatsoever, or receiving money on deposit. 

4th. Collector— Collectors.— County, town, district and deputy 
collectors. 

5th. County board.— The board of supervisors— the board of 
county commissioners. 

6th. Credits. — Every claim or demand for money, labor, inter- 
est, or other valuable thing, due or to become due, not including 
money on deposit. 

m 7th. He.— Male, female, company, corporation, firm, society, 
singular or plural number. 

8th. Money— Moneys. — Gold, silver or other coin, paper or other 
currency used in barter and trade as money, in actual possession, 
and every deposit which the person owning, holding in trust, or 
having the beneficial interest therein, is entitled to withdraw in 
money on demamj, 



DIV. VH.] DEFINITIONS — REPEALING CLAUSE. 457 

9th. Number. — The singular number shall include the plural, 
and the plural number shall include the singular. 

10th. Oath. — Oath or affirmation. 

11th. Person — Persons. — Male, female, corporation, company, 
firm, society, singular or plural number. 

12th. Real property— Real estate— Land— Tract— Lot— Not 
only the land itself, whether laid out in town or city lots, or other- 
wise, with all things contained therein, but also all buildings, 
structures and improvements, and other permanent fixtures, of 
whatsoever kind, thereon, and all rights and privileges belonging 
or in anywise pertaining thereto, except where the same may be 
otherwise denominated by this act. 

13th. Shares of stock— Shares of capital stock.— The shares 
into which the capital or stock of every incorporated company or 
association may be divided. 

14th. Tax— Taxes. — Any tax, special assessments or costs, 
interest or penalty imposed upon property. 

293. Power of county court, until, etc.] § 293. In all counties 
not under township organization, the county court, or judge of the 
county court, as the case may require, shall perform all the duties 
required in this act to be performed by the county board, or chair- 
man of the county board, as the case may be, in such counties, 
until such time as the board of county commissioners shall be duly 
elected and qualified in said counties. 

REPEALING CLAUSE. 
Section. 

294. Act repealed. 

295. Bridges on border of state— How assessed. 

296. Sale of bridge, etc., for tax. 

297. Repeal. 

294. Acts repealed.] § 294. The laws and parts of laws enti- 
tled as hereinafter named are hereby repealed : 

[The acts repealed are omitted, as they are enumerated in Rev. 
Stat., ch. 131, § 5.] 

The repeal of said acts and parts of acts shall not be construed 
to impair any right existing, or affect any proceeding pending, at 
the time this act shall take effect ; but all proceedings for the 
assessment of any tax, or collection of any tax or special assess- 
ment then remaining incomplete, may be completed pursuant to 
the provisions of this act. The provisions of this act shall apply 
to redemptions from sales made for taxes or special assessment 
previous to the taxing effect hereof, and the mode of giving notice, 
° «1 issuing deeds upon certificates of sales made for taxes, 



458 REVENUE. [DIV. VII. 



[An act for the assessment of bridges across navigable streams forming the 
boundary of this state, approved May 1, 1873, provides that they shall be 
assessed (to the center of the stream) as real estate, and that all provisions of 
law relating to the assessment of real estate shall apply in such cases.] 

AGRICULTURAL AND OTHER STATISTICS. 

AN ACT to secure the collection and publication of agricultural and other statistics. [Ap- 
proved and in force May 25, 1875.] 

Section. 

1. Blanks and schedules. 

2. How schedules to be filled and returned. 

3. Duty of officers. 

4. Statistical returns— How made. 

1. Blanks and schedules.] § 1. That it shall be the duty of 
the secretary of the state board of agriculture to prepare and 
deliver to the auditor on or before the first day of April in each 
year, forms of blanks and schedules similar to those used in the 
assessment and return of property, one or more copies of which 
forms the state auditor shall send by mail to the county clerks of 
the several counties on or before the date aforesaid for their in- 
formation and guidance. 

2. How schedules to be filled and returned.] § 2. It shall be the 
duty of the county .clerk of each of the several counties to pro- 
vide schedules and blanks according to the forms provided by 
the auditor for the use of assessors, and it shall be the duty of 
assessors and deputy assessors in the same manner, and at the 
same time as is or may be provided by law for the assessment of 
property, to cause such census schedules to be filled by all per- 
sons within their respective assessment districts in possession of 
property concerning which information is required by this act. 
Such schedule shall truly and distinctly set forth the number of 
acres he, she or they may have had the preceding year in fall 
wheat, spring wheat, corn, rye, oats, barley, buckwheat, castor 
beans, beans, peas, Irish potatoes, sweet potatoes, turnips and 
other root crops, and the number of bushels of each produced 
the preceding year; the number of acres in timothy grass, and 
the number of tons of hay and bushels of seed produced there- 
from the preceding year ; the number of acres in clover, and the 
number of tons of hay and the bushels of seed produced there- 
from the preceding year ; the number of acres planted in cotton, 
and the number of pounds of lint and the bushels of seed ob- 
tained therefrom the preceding year ; the number of acres sown 
in flax, the number of pounds of fibre and the bushels of seed 
obtained therefrom the preceding year; the number of acres 






DIY. VH.] ILLINOIS CENTRAL RAILROAD — DOGS. 459 

Elanted in tobacco, and the number of pounds produced Ihere- 
■om the preceding year. And the secretary of the state board 
of agriculture shall have power, after the first year, to add to or 
omit from the foregoing schedule such items as the said state 
board of agriculture shall designate. 

3. Duty of officers.] § 3. It shall be the duty of all persons 
owning or in possession of property concerning which informa- 
tion is required by this act, to make out and deliver to the 
assessor at the time fixed for the listing of property for taxation 
a schedule as aforesaid properly and correctly filled, and it shall 
be the duty of said assessors or deputy assessors to properly fill 
and add up the blanks and schedules aforesaid and to return the 
same correctly footed up, to the county clerk at the same time 
and in the same manner as is now or may be required for the 
return of assessments. 

4. Statistical returns.] § 4 It shall be the duty of the county 
clerk to revise, correct, tabulate and foot up the statistical re- 
turns made to him by the assessors or deputy assessors of 
organized townships in counties under township organization, 
and of congressional townships in counties not under township 
organization, and to transmit to the state auditor with his return 
of the assessment of the county an abstract of the agricultural 
statistics of the county in the form required by the schedule and 
blanks furnished by the auditor ; and it shall be the duty of the 
auditor to transfer without delay such abstracts to the secretary 
of the state board of agriculture, who shall revise, correct, and 
compile the same, and publish the results in the annual report 
of the transactions of the state board of agriculture for the year 
or years in which the statistics were collected. 



460 animals. [mv. Vila. 



DIVISION Vila 

ANIMALS. 
DOG AND SHEEP ACT. 

AN ACT to indemnify the owners of sheep in cases of damages committed by dogs. [Approved 

May 29, 1879.] As amended by Act of 1881. 

1. Assessor to make list. 6. Damages, how ascertained. 

2. License fee, 7. Summons. 

8. License fund — how paid out. 8. Fees of justice, appraisers, etc. 
i. Payment not to bar action, when, 9. Meaning of the word "dog" 
5. Affidavit to show damage. 

1. Assessor to make list.] 2 1. That each county and town- 
ship assessor in this state, when making the assessment, shall annually 
make a list of the names of all persons who own or keep a dog or 
dogs, and set opposite the name of such owner or keeper the num- 
ber of dogs he or she has in his or her possession, or that is or 
are kept on his or her premises ; which list shall be returned by 
such assessor to the county clerk of the county in which said list 
is taken as soon as the assessment is completed. 

2. License fee.] § 2. The county clerk shall charge upon the 
collector's book against the name of each person reported and re- 
turned as the owner or keeper of a dog or dogs, as a license fee, 
the sum of one dollar for each dog owned or kept by such person, 
which fee shall be collected at the same time, and in the same 
manner as taxes upon personal property. In counties not under 
township organization, the collector shall pay the amount received 
from the licenses aforesaid to the treasurer of his county, and in 
counties under township organization the sum so collected in each 
town, shall be paid by the collector to the supervisor of his town, 
Provided, such supervisor shall not be required to give any new bond 
for such license fee, but such supervisor and his sureties shall be liable 
on his origiiial bond as supervisor in the same manner and to the same 
extent as they now are for other moneys received by such supervisor 
by virtue of his office. [As amended, June, 1891. 

3. License fund— How paid out.] § 3. It shall be the duty of 
the county treasurers and supervisors having the custody of the 
funds collected as license fees as aforesaid, to pay the same out in 
the manner following : 

First. — By such county treasurers to the owners of sheep in 
their respective counties, and by the supervisors to the owners of 
sheep in their respective towns, who shall make proof to them 



DIV. VII.] DOGS. 461 

before the first Monday of March in each year, of loss or injury to 
sheep by dogs, other than their own, the full amount of the loss or 
injury so proved, if there are funds sufficient to pay the same; if 
there be not sufficient funds to pay such loss or injury in full, then 
the owner of sheep so sustaining loss or injury as aforesaid, and 
making proof thereof as in this act provided, shall be paid out of 
such funds in proportion to his or her loss or injury, or his or her 
pro rata share thereof. Provided, that if such funds shall not be 
sufficient in any one year to pay in full the losses occurring in any 
one year, then the amount remaining unpaid shall be paid pro 
rata with other proved losses in each succeeding year until the 
same are paid in full. 

Second — If there be a balance of such license fund left in the 
hands of the county treasurer, or in the hands of the supervisor of the 
township, after paying all the losses and injuries sustained as afore- 
said, such balance shall be covered into the road and bridge fund in 
counties not under township organization, to be paid out as the 
county board may direct, and in counties under township organiza- 
tion, said balance shall be paid by the supervisor to the treasurer 
of the highway commissioners, to be by them used as a part of 
the road and bridge fund of said township, to be paid out by said 
treasurer as said highway commissioners may direct. [As amend- 
ed June 19, 1898. 

4. Payment not to bar action, when.] § 4. The payment to 
any owner of sheep of money for damages resulting from loss or 
injury to his or her sheep, shall not be a bar to an action by such 
owner against the owner or keeper of the dog or dogs committing 
such injury or causing such loss, for the recovery of damages 
therefor. The court or jury before whom such action is tried shall 
ascertain from evidence what portion, if any, of the damages sought 
to be recovered in such action has been paid to the plaintiff in such 
action by the county treasurer or supervisor of the proper county 
-or town ; and in case the plaintiff in such action recovers dam- 
ages, the court shall enter judgment against the defendent, in the 
name of the plaintiff, for the use of the proper county or town as 
the case may be, for the amount which the plaintiff has received 
on account of such damages from the co. treasurer or supervisor 
of the proper county or town, if such recovery shall equal or exceed 
the amount so received by such plaintiff from the county treasur- 
er, or town supervisor of his county or town ; and the residue of 
such recovery, if any there be, shall be entered in the name of 
the plaintiff in such action to his own use ; if the amount of the 
recovery in such action shall not equal the amount previously paid 
to the plaintiff on account of such damages by the county treas- 
urer or the town supervisor of the proper county or town, then the 
judgment shall be entered as aforesaid, for the use of such county 
or town, for the full amount of such recovery. Writs of execution 
issued upon such judgments shall show on their face what portion 



462 ANIMALS. [diy. vim. 

of the judgment is to be paid to the proper county or town, and what 
portion is to be paid to the plaintiff in such action, and the judgment 
when collected shall be paid over to the parties entitled thereto, in 
their proper proportions. 

5. Proof of damages — proceedings before supervisor — 
record to be kept — when owner solvent. 2 5. No person hav- 
ing sheep killed or injured as aforesaid shall be entitled to receive any 
portion of the fund herein provided for unless he appear before the 
supervisor of the town in which the sheep are killed or injured or be- 
fore the county treasurer in counties not under township organization 
within not less than ten nor more than forty days after the sheep are 
killed or injured and make affidavit stating the number of sheep killed 
or injured, the amount of damage done by dogs, and owner or owners 
of the dogs if known. (1) All damages shall be proven by not less than 
two witnesses who shall be freeholders of the county, and such super- 
visor or county treasurer is hereby authorized to administer oaths in 
such cases, aud shall keep a record in each case of the name of the 
owner, and the amount of damage proven and the number of sheep 
killed or injured. (2) And in case the owners of the dog or dogs are solv- 
ent, the county or town, as the case may be, shall not pay such damage 
out of such fund: Provided, that the damages allowed shall in no event 
exceed $5.00 per head for such sheep killed or injured. [As amended 
May 24, 1897.] 

6. Witness fees — repeal.] I 6. The supervisor or county 
treasurer, as the case may be, shall allow not to exceed fifty cents to 
each witness, which shall be paid out of the fund created by this act 
prior to its disposition by the third section of this act. [As amen'ded 
May 24, 1897.] (3) 

(1) Form of Affidavit by Owner of Sheep. 

State of Illinois, County, ss: 

A. B. being duly sworn on oath, deposes and says, that on the day of 

A. D. 18 ,(ten) sheep owned by him, in the town of , were kille i Tor injured] 

by a dog, other than his own, but owned [or kept] by C- D. ; that said C. D, is insolvent; 
that affiant hao received no compensation from the owner of said dog. or from any 
other person for his damages sustained aforesaid, 

Subscribed and sworn to before me this ) A. B. 

day of , A. D. 18 . > 

P. K., N. Pub. ) 

If the owner of the dog or dogs is unknown the affidavit may be 
in the following form : 

A. B. being duly sworn on oath, deposes and says, that on the day of , 

A. D. 18 , [number] sheep owned by him were killed lor injured] by a dog, other 

than his own, the owner [or keeperj of which is unknown to him [or her,] 






DIY. Vila.] ANIMALS. 462 



(2) Form of Record to be kept by Supervisor. 

I 



State of Illinois \ No. 

County 

Township of ) Before , Supervisor. 

In the matter of the claim of for damages for the killing or injuring of sheep 

"by — owned, by a dog or dogs belonging to , being insolvent, or to some person or 

persons unknown. 

Affidavit of claimant-owner filed the — day of A. D. — 

Number of sheep killed 

Number of sheep injured 

Amount of damages proved $ 

Amount of witness fees $ 

Supervisor 

Received damages, $ — Owner. 

Received witness fee, f— Witness. 

Received witness fee, $— Witness. 

(3) This amending act of 1397 is entitled "An act to amend sections five (5) and 
six (6) of An act to indemnify the owners of sheep in cases of damages committed 
by dogs," etc. The enacting section repeats these words of the title, saying that 
"sections 5 and 6 of an Act," etc., "be and the same are hereby amended as follows: 

Section 3. If there be a balance of such license fund left in the hands of the county 
treasurer or in the hands of the supervisor of the township after paying all the losses 
and injuries sustained as aforesaid, such balanca shall be held by said county treas- 
urer or the supervisor of the township, to be paid on any further losses sustained hy 
the owners of sheep. " 

In reply to an inquiry by the reviser of this work whether, in his opinion, this 

pretended amendment of the last clause of section three has any validity, the 

Attorney-General has given the following opinion: 

"I am of the opinion it has not. Section 13 of article 4 of the constitution of 1870 
among other things provides: "No act hereafter passed shall embrace more than one 
subject, and that shall be expressed in the title: but if any subject shall he embraced 
in an act which shall not be expressed in the title, such act shall be void only as to so 
much thereof as shall not be so expressed: and no law shall be revived or amended 
by reference to its title only, but the law revived or the section amended shall be 
inserted at length in the new act.' Turning to the act of 1897, to which you refer, I 
find that it seems to consist of three sections, numbered 3, 5 and 6, and I also find that 
the title to the act is 'An act to amend sections 5 and 6 of,' etc. and that the prelimi- 
nary clause reads ; Be it enacted," etc.. 'that sections 5 and 6 of an act,' etc., 'he and 
the same are hereby amended to read as follows.' Under these circumstances, I 
think there is no doubt but that the clause of the act that is designated as section 3 is 
entirely without validit)-." 

The reviser has, therefore, permitted section three to stand in the text of this 

work without alteration. 



464 ANIMALS. [DIV. VII. 



IN RELATION TO DOMESTIC ANIMALS. 

AN ACT in relation to domestic animab running at large within the state of Illinois. Approved 
June 21, 1895. In force July 1, 1895. 

1. Unlawful to run at large, 4. Poundmaster to enforce act— penalty 

2. What deemed a running at large. 5. Not affected by this act. 

3. Pound— poundmaster— fees— duties. 6. Repealing clause. 

7. Unlawful to run at large.] Be it enacted, etc. 3 1. That 
hereafter it shall be unlawful for any animal of the species of horse, 
ass, mule, cattle, sheep, goat, swine or geese, to run at large in the state 
of Illinois. 

8. What deemed a running at large.] I 2. Whoever being 
the owner or having control of any domestic animal of the species men- 
tioned in section 1 of this act shall suffer the same to run at large shall 
be fined not less than two dollars nor more than ten dollars for each 
offense, and for every day he shall permit the same to run at large after 
having once been convicted under this act. The herding of any such 
animals upon uninclosed lands without the consent of the owner or per- 
sons having control of such lands shall be deemed a running at large 
under this act. 

9. Pound — poundmaster —fees — duties.] I 3. It shall be 
the duty of the commissioners of highways in townships in counties 
under township organization, and the boards of county commissioners 
in counties not under township organization, as soon as this act takes 
effect, to select and prepare a suitable pound near the center of each 
township or voting district in counties under township organization, and 
near the center of each voting precinct in counties not under township 
organization; appoint a poundmaster, and fix his fees and charges, 
which shall remain as fixed until the next annual election, at which time 
the same may be changed or amended by a majority vote of the electors 
present, who shall at the same time elect a poundmaster for the ensuing 
year. Said poundmaster shall hold his office for one year and until his 
successor is duly elected: Provided, however, that in case the person so 
elected shall fail to act, or a vacancy occurs through resignation, 
removal, death, or any other cause whatever, the commissioners of high- 
ways shall fill such vacancy by appointing a person to act as pound- 
master until the next annual election. 

10. Poundmaster to enforce act — penalty.] §4. It shall be 

the duty of the poundmaster to enforce the provisions of this act in his 
district; and for any failure so to do, he shall be liable to a fine of not 
less than three dollars nor more than twenty dollars. 

11. What counties or townships not affected by this act.] 

\ 5. Nothing in this act shall be construed to affect counties or town- 
ships which already have in force a law restraining the animals men- 
tioned in this act from running at large. 



DIV. VII.] ESTRAYS. 465 

12. Repeal.] I 6. An act entitled "An act to revise the law in 
relation to permitting animals to run at large, " approved March 30, 1874, 
in force July 1, 1874, and an act entitled "An act to prevent male ani- 
mals running at large and for their restraint," approved March 8, 1872, 
in force July 1, 1872, and an act entitled "An act to prevent animals 
running at large within the corporate limits of incorporated cities, vil- 
lages and towns," approved June 16, 1891, in force July 1, 1891, are 
hereby repealed. 

ESTEAYS. 

Part of the Act to revise the law in regard to estrays and other lost property. L Approved March 23, 
1874. In force July 1, 1874. Rev. Stat,, ch. 50.1 

13. Wheii estrays may be taken up.] 3 1 That horses, mules, 
asses, neat cattle, swine, sheep or goats found straying at any time 
during the year in counties where such are not allowed to run at large, 
the owner thereof being unknown, may be taken up as estrays. (1) 

J 4. Who may not take up estrays.] 2 2. No person who is 
not a householder in the county where the estray is found, shall take up 
such estray, and no person shall be allowed to take up any estray except 
upon or about his farm or place of residence. [L. 1847, p. 47, I 2. 

15. Not to use before advertising — milk.] I 3. No person 
taking up an estray shall use the same previous to advertising it; but 
animals giving milk may be milked for their benefit. [R. S. 1845. 

16. Several estrays.] § 4. When several estrays are taken up 
by the same person, they shall be included in the same notices and pro- 
ceedings. [R. S. 1845, p. 228. 

17. Notice of taking up.] 3 5. Whoever takes up or has at any 

time upon his inclosed lands an estra} T , shall, within five days thereafter, 
post up notices(2) in three of the most public places in the town or 
precinct in which the estray was taken up or found, giving the residence 
of the taker-up and a particular description of such estray, its age, color 



(1) Section 1 of this act has been modified by effect of the act of 1895 (see above) which prohibits 
domestic animals from running at large anywhere, in Illinois, at anytime. 

(2) Form of Notice of taking up Estray by Householder. 
ESTRAY NOTICE. 

Notice is hereby given that the subscriber, a householder in the county of 
, state of Illinois, whoresid.es at [give locality of residence with reason- 
able certainty], in the township of ,in said county, did on the .. day of , 

a. d , take up, on his farm [or at his place of residence], in said township, one 

estray cow [or as the case may be], of the following description: [give partic- 
ular description — age, color and marks, natural and artificial, as near as may 

be], and that the subscriber will, on the day of , a. d. , at the hour 

of .. o'clock, _. M., apply to L. M. Esq., justice of the peace in said township of 
, at his office therein, to have the said estray appraised. 

Dated this day of ....... a. n. A. B. 

The foregoing notice was delivered to me, C. D., town clerk of the town of 
the day of a. d (Signed by the town clerk.) 



466 ANIMALS. [DIV. VII. 

and marks, natural and artificial, as near as may be, and stating before 
what justice of the peace in such town or precinct, and at what time, 
not less than ten nor more than fifteen days from the time of posting 
such notice, he will apply to have the estray appraised. [R. S. 1845.] 

18. Recording notice with town clerk.] I 6. In counties 
under township organization, the taker-up shall also, within the same 
time deliver a copy of such notice to the town clerk of his town, who 
shall enter the same at large in a book to be kept for that purpose, to 
be known as the "Town Estrays Book," noting in said book the tune 
when the notice is delivered to him. 



DISEASES AMONG SWINE. 

AN ACT to prevent the spread of contagious or infectious diseases among swine. Approved June 
21, 1895. In force July 1. 1895. 

19. Suffering swine to run at large.] Be it enacted, etc. I 1. 
That whoever, being the owner of, or having charge of any swine, shall 
suffer the same to run at large shall be fined not less than three ($3) nor 
more than ten ($10) for each offense, and for every day he shall allow 
the same to run at large after having been once convicted under this act. 
The herding of any swine upon the grounds of another without the con- 
sent of the owner or person having control of such grounds shall be 
deemed a running at large under this act. The law providing for hold- 
ing elections to vote upon the question of allowing domestic animals to 
run at large, shall not be construed to apply to swine. (1) 

20. Hog cholera — duty of owner.] I 2. It shall be the duty 
of the owner or person having charge of any swine and having know- 
ledge of, or reasonable grounds to suspect the existence among them of 
the disease known as "hog cholera," or of any contagious or infectious 
disease, to use all reasonable means to prevent the spread of the same, 
and upon its coming to his knowledge that any of such swine has died 
of, or been slaughtered on account of any such disease to immediately 
burn or bury the same to a depth of two (2) feet. 

21. Conveying diseased swine unlawful.] I 3. No person shall 
convey upon, or along any public highway or other public grounds or any 
private lands, any diseased swine, or swine known to have died of, or 
been slaughtered on account of any contagious or infectious disease. 

22. Penalty.] §4. Any person convicted of a violation of sections 
two (2) or three (3) of this act shall be fined in any sum not less than 
five (5) nor more than fifty (50) dollars, and shall be held liable in dam- 
ages to the person or persons who may have suffered loss on account of 
such violation. 

(1) The last clause of this section is superfluous, as the act providing for elections on the qnestion 
of allowing animals to run at large has been repealed by the preceding act of 1895 in relation to 
domestic animals. 



DIY. vni.] ELECTORS OF PRESIDENT AND ViCE PRESIDENT. 467 



DIVISION VIII, 

ELECTIONS. 



AN ACT In regard 



ELECTORS OP PRESIDENT AND VICE-PRESIDENT OF UNITED STATES. 
Section. 

1. Election. 

2. Returns— Canvass— Tie. 

3. Result published-Certificate sent to person elected. ' 

4. Meeting of electors— Mileage. 

5. Vacancies tilled. 

1. Elections.] § 1. That there shall be elected, by general 
ticket on the Tuesday next after the first Monday in NoSer 
&Tt&*^ fP aat,Qn of ^ term °f office of ea£h president of 
of thi ^ftS-f l aS m ^ ele t ctorsof President and vice-preside* 
of the United States as this state may be entitled to elect-which 
election shall be conducted and returns thereof made as hS 
ad1ff£Tt d: f Provi i ed \ that « «»g«»8 should hereafter fix 
ifft^ i^ 7 f °\ SU J ch Section, then the election for electors 
shall be held on such day as shall be named by act of congress (1) 

2. Rehirns-Canvass-Tie.] § 2. The county clerks of the 

ti^fjT'r Sh f' Wlth > e * h * d ^ a next after 7 holdTng an elec! 
ton for electors of president and vice-president of thf United 

ate ract IFJZf^ °V U thiS , a0t ' make three copi^ of he 
™Tt ♦ °V otes for electors, and transmit by mail one of said 
copies to the governor, another to the office of the secretarv of 
state, and retain the third in his office, to be sent for by the Lv 
ernor m case both the others should be mislaid Withfn it££ 
days after the holding of such election! aTd sooner^ ah the £ 
tarns are received by either the governor or by the secreWv o 

^'or^rttoYf l State rf it01 \° f P ublic ^ttsTd^eas- 
nrer, or any two of them, shah, in the presence of the governor, 

^4ffiff& , «ESfaSffiS?5SS5»i? £ &k?™ 0t ™* '"-t.anumbero, 
entitled in the Congress; but m senator OT r mr.,»n«S£ re3entaeiTes J° which ^e State may be 
profit under the United SUtSSaU be Appointed S?S" Pe "° a holdtag an 0Oce «' trust or 

neaday in December, 6 eir vuies Ior P«*"ient and vice-president shall be the first Wed- 



468 ELECTIONS. [DIY. VHL 

proceed to open and canvass said election returns, and to declare 
the persons having the highest number of votes elected; but 
should any two or more persons be returned with an equal and the 
highest vote, the said secretary of state shall cause a notice of the 
same to be published, which notice shall name some day and place, 
not less than five days from the time of the publication of such 
notice, upon which the said secretary, auditor and treasurer will 
decide by lot which of said persons so equal and highest is 
elected. And upon the day and at the place so appointed in said 
notice, the said secretary, auditor and treasurer, or any two of 
them, shall, in the presence of the governor, decide by lot which 
of the persons so equal and highest shall be elected. 

3. Result to be published— Certificate sent to person elected.] 
§ 3. The governor shall cause the result of said election to be 
published, and shall transmit by mail, to the persons elected, cer- 
tificates of their election. 

4. Meeting of electors — Mileage.] § 4. The electors, chosen as 
aforesaid, shall meet at the seat of government of this state, at the 
time appointed by the laws of the United States, and give their 
votes in, in the manner therein provided, and perform such duties 
as are or may be required by law. Each elector shall receive foi 
every twenty miles necessary travel in going to the seat of gov- 
ernment to give his vote, and returning to his residence, to be 
computed by the most usual route, the sum of $3, to be paid on 
the warrant of the auditor, out of any money in the treasury not 
otherwise appropriated. 

5. Vacancy filled.] § 5. In case any person declared duly 
elected an elector of president and vice-president of the United 
States shall fail to attend at the state house, at the seat of gov- 
ernment of this state, at or before the hour of twelve o'clock, at 
noon, of the day on which his vote is required to be given, it shall 
be the duty of the elector or electors of president and vice-presi- 
dent, attending at the time and place, to appoint a person or per- 
sons to fill such vacancy : Provided, that should the person or 
persons chosen by the people, as aforesaid, arrive at the place 
aforesaid before the votes for president and vice-president are 
actually given, the person or persons appointed to fill such 
vacancy shall not act as elector of president and vice-president 

TIME OF HOLDING ELECTIONS FOR CERTAIN OFFICERS. 

8»ctioh. 

6. Representatives in congress. 

7. Governor, lieutenant governor, secretary of state, auditor and it- 

torney general. 

8. Superintendent of public instruction. 

9. State treasurer. 



OIV. Tin.] TIME OF ELECTIONS FOR CERTAIN OFFICERS. 469 

10. Judges of supreme court. 

1 1. Clerks of supreme court. 

1 2. Judges of circuit courts. 

13. Judges of superior court of Cook county. 

14. State senators. 

15. Members of the house of representatives. 

16. County judges and county clerks. 

17. Sheriffs and coroners. 

18. Clerks of circuit courts. 

19. Clerk of superior court of Cook county. 

20. Clerk of criminal court of Cook county. 

21. County treasurers. 

22. County treasurer ex-offioio assessor in counties not under township 

organization. 

23. County surveyors. 

24. County superintendent of schools. 

25. State's attorneys. 

26. State board of equalization. 

27. Recorder of deeds in counties of sixty thousand inhabitants. 

28. County commissioners in counties not under township organi- 

zation. 

6. § 6. Representatives in congress shall be elected on Tuesday 
next after the first Monday in November, in the year of our Lord 
1872, and every two years thereafter ; but if congress shall fix a 
different day, then such election shall be held on the day so fixed 
by congress. 

7. § 7. The governor, lieutenant governor, secretary of state, 
auditor of public accounts and attorney general shall be elected on 
Tuesday next after the first Monday, of November, in the year of 
our Lord 1872, and every four years thereafter. [See Const., 
art 5, § 3. 

8. § 8. The superintendent of public instruction shall be 
elected on Tuesday next after the first Monday of November, in 
the year of our Lord 1874, and every four years thereafter. [See 
Const., art. 5, § 3. 

9. § 9. The state treasurer shall be elected on Tuesday next 
after the first Monday of November, in the year of our Lord, 1872, 
and every two years thereafter. [See Const., art. 5, § 3. 

10. § 10. The judges of the supreme court shall hereafter be 
elected as follows, to-wit : In the first, second, third, sixth and 
seventh districts on the first Monday of June, in the year of our 
Lord 1879, and every nine years thereafter. In the fourth dis- 
trict, on the first Monday of June, in the year of our Lord, 1876, 
and every nine years thereafter. In the fifth district, on the first 
Monday of June, in the year of our Lord 1873, and every nine 
years thereafter. [See Const, art. 6, § 6. 

11. § 11. A clerk of the supi-eme court in each grand division 
shall be elected on Tuesday next after the first Monday of 



470 ELECTIONS. [DIV. VIE, 

November, in the year of our Lord, 1872, and every six yearn 
thereafter. [See Const., art. 6, § 10. 

12. § 12. The judges of the circuit court shall be elected on 
the first Monday of June, in the year of our Lord, 1873, and every 
six years thereafter. [See Const., art. 6, § 14 

13. § 13. The judges of the superior court of Cook county 

shall be elected, as follows: One on Tuesday next after the first 
Monday of November, in the year of our Lord 1873, and every 
six years thereafter ; one on Tuesday next after the first Monday 
of November, in the year of our Lord 1875, and every six years 
thereafter ; and one on Tuesday next after the first Monday of 
November, in the year of our Lord 1877, and every six years 
thereafter. [As amended by act approved April 11, 1873 . 

14. § 14. State senators shall be elected as follows, to- wit : 
Those in districts bearing even numbers shall be elected on Tues- 
day next after the first Monday of November, in the year of our 
Lord, 1872, and every four years thereafter. Those in districts 
bearing odd numbers shall be elected on Tuesday next after the 
first Monday of November, in the year of our Lord 1872, for the 
term of two years. And after that they shall be elected on Tues- 
day next after the first Monday of November, in the year of oui 
Lord, 1874, and every four years thereafter. [See Const., art. 4, § 6> 

15. § 15. Members of the house of representatives shall be 
elected on Tuesday next after the first Monday of November, in 
the year of our Lord 1872, and every two years thereafter. 

16. § 16. The county judges and county clerks shall be elected 
on Tuesday next after the first Monday of November, in the yeai 
of our Lord 1882, and every four years thereafter. 

17. Sheriffs and coroners.] §17. The sheriffs shall be elected 
on Tuesday, next after the first Monday of November, 1882, and every 
four years thereafter, and shall enter upon their offices on the first 
Monday of December after their election ; and coroners shall be elected 
on Tuesday, next after the first Monday of November, 1884, and every 
four years thereafter there shall be elected a coroner in each of the 
counties of this state, and they shall enter upon their offices on the first 
Monday of December after their elections. [As amended, 1881. 

18. § 18. The clerks of the circuit court shall be elected on 
Tuesday next after the first Monday of November, in the year of 
our Lord 1872, and every four years thereafter. [See Const., art. 
10, § 8. 

19. § 19. The clerk of the superior court of Cook county shall 
be elected on Tuesday next after the first Monday of November, 
in the year of our Lord 1884, and every four years thereafter. 

20. § 20. The clerk of the criminal court of Cook county shall 



OIV. Vni.] TIME OF ELECTIONS FOR CERTAIN OFFICERS. 471 

be elected on Tuesday next after the first Monday of November, 
in the year of our Lord 1886, and every four years thereafter. 
I See Const., art. 6, § 27. 

21. § 21. The county treasurers shall be elected on Tuesday 
next after the first Monday of November, in the year of our Lord 
1882, and every two years thereafter. [See Const, art. 10, § 8." 

22. County treasurer ex-officio collector — Fees. ] *§ 1. In 
•counties not under township organization there shall be elected 
on Tuesday next after the first Monday of November, in the year 
of our Lord 1873, aDd every two years thereafter, a county treas- 
urer, who shall be ex-officio the county assessor, and who shall 
•eceive all fees as treasurer and assessor as is provided by law, 
and who shall hold his office for two years, and until his succes- 
sor is elected and qualified. 

23. § 22. The county surveyors shall be elected on Tuesday 
next after the first Monday of November, in the year of our Lord 
1884, and every four years thereafter. [See Const., art. 10, § 8.f 

24. § 23. The county superintendents of schools shall be elected 
on Tuesday next after the first Monday of November, in the year 
©f our Lord 1882 and every four years thereafter. 

25. § 24. A state's attorney shall be elected in each county on 
Tuesday next after the first Monday of November, in the year of 
our Lord 1884, and every four years thereafter. [See Const., 
lirt 6, § 22. 

26. State board of equalization.] § 25. There shall be elected 
in each congressional district, on Tuesday next after the first 
Monday of November, in the year of our Lord 1872, and every 
four years thereafter, one elector, to serve as a member of the state 
board of equalization. [See " Kevenue," § 100-1. 

27. Recorders of deeds in certain counties.] § 26. In coun- 
ties having a population of sixty thousand or more, there shall 
be elected a recorder of deeds, on Tuesday next after the first 
Monday of November, in the year of our Lord 1872, and every 
four years thereafter. [See Const., art. 10, § 8. 

[§ 27 of this act, providing for the election of an assessor in 
counties not under township organization, is repealed by impli- 
cation. See § 22 of this chapter.] 

28. County commissioners.] § 28. In counties not under 
township organization there shall be elected on Tuesday next 
after the first Monday of November, in the year of our Lord 
1873, three officers, who shall be styled " The Board of County 
Commissioners," one of whom shall hold his office for one year, 

*Av Act to consolidate the offices of county treasurer and county assessor in counties not undei 
township organization. [Approved May 2, 1873. In force July 1, 1873. L. 1873, p. 74 J 



472 ELECTIONS. [DIV. VIII, 

one for two years, and one for three years, to be determined by 
lot; and every year thereafter, one such officer shall be elected 
in each of said counties, for the term of three years. See Cons., 
art 10, § 6. 

ELECTION PRECINCTS AND DISTRICTS. 

29. Election precincts.] § 29. In counties not under township 
organization the election precincts shall remain as now established until 
changed by the board of county commissioners, but said county board 
may, from time to time, change the boundaries of election precincts 
and establish new ones. In counties under township organization each 
town shall constitute an election precinct. Act of June 27, 1885. 

30. Election precincts divided into districts.] § 30. The 
county board in each county shall, at its regular (or at a special) meet- 
ing, in the month of July, 1885, divide its election precincts, which 
contain more than four hundred and fifty voters, into election districts, 
so that each district shall contain, as near as may be practicable, four 
hundred voters, and not more in any case than four hundred and fifty 
voters. Said districts shall be composed of contiguous territory and in 
as compact a form as can be foi the convenience of the electors voting 
therein. The several county boards, in establishing said districts, shall 
describe them by metes and bounds and number them. And so often 
thereafter as it shall appear, by the number of votes cast at the general 
election held in November of any year, that any election district, or 
undivided election precinct, contains more than four hundred and fifty 
voters, the county board of the county, in which such district or precinct may 
be, shall, at its regular (or at a special) meeting- in the montn of July next after 
such November election, redivide or readjust the election districts, or divide 
such election precincts, so that no district, or undivided election precinct, shall 
contain more than the number of voters above specified. If said division or 
readjustment is not made at such July meeting, it may be made at an adjourned 
or special meeting- of said county board, to be held in the month of August next 
thereafter. The county board in every case shall fix and establish the places 
for holding elections in its respective county, and all general and special elec- 
tions shall be held at the places so fixed. The said polling places shall, in all 
cases, be upon the ground floor, in the front room, the entrance to which is 
from a highway or public street which is at least forty feet wide, and as near 
the center of the voting population of the district as is practicable and for the 
convenience of the greatest number of electors to vote thereat, and in no case 
shall an election be held in any room used or occupied as a saloon, dramshop, 
billiard hall, bowling alley or as a place of resort for idlers and disreputable 
persons, or any room connecting therewith by open doors or hallways. No per- 
son shall be permitted to vote at any election except in the district in which 
he resides. Provided, that the count}* board may, if it deem it to be for tbe 
best interests of the voters of any town or precinct, divide any election pre- 
cinct which contains more than three hundred legal voters into two election 
precincts, said precincts to contain as near two hundred voters as possible. 
[As amended April 4, 1895.] 

31. Qualification of judges.] I 31. That every person elected 
or chosen judge of elections shall be of fair character, approved integ- 



DIV. VIII.] OATHS OF JUDGES AND CLERKS OF ELECTIONS. 473 

rity, well informed, who can read, write and speak the English lan- 
guage, and has resided in the election district, in which he is to serve, 
for one year next preceding the election, and is entitled to vote therein 
at such election. 

JUDGES AND CLERKS OF ELECTION. 

32. In counties not under township organization, the county commission- 
ers are directed to appoint (in July) three inspectors of election in each pre- 
cinct or district (as the case may be) who shall hold office for one year. But 
the electors of each precinct or district may elect such inspectors, in which 
case the county board will not act, except to fill a vacancy. 

33. In counties under township organization.] I 33. In 

counties under township organization, the county board shall at its 
regular (or at a special) meeting in the month of July of each year, 
except where such judges and clerks are appointed by election com- 
missioners, appoint in each election district or precinct in the county 
three capable and discreet electors to be judges of elections, and who 
shall possess the qualifications required by this act for such judges. 
The town supervisor shall be appointed as one of such judges of elec- 
tion in the district or precinct in which he resides. No more than two 
persons of the same political party shall be appointed judges of the 
same election district or precinct. Such election judges shall hold their 
office one } T ear from their appointment and until their successors are 
duly appointed. The said county board may fill vacancies in said office 
at any time. [As amended June 3, 1897.] 

34. Notice of appointment] § 34. Immediately on the ap- 
pointment of such judges, the county clerk shall make out and 
aeliver to the sheriff of the county a notice thereof, directed to 
each person so appointed, and the sheriff shall, within twenty 
days after the receipt of such notices, deliver the same to the 
several judges so appointed. 

35. Term of office.] § 35. The judges so appointed shall be 
and continue judges of all general and special elections held 
within their respective precincts or districts, until other judges 
shall be appointed in like manner. 

36. Yacancies filled.] § 36. If, at the time for the opening of 
any election, any person appointed or constituted a judge of 
election shall not be present, or will not act or take the oath to 
act in such capacity, the judge or judges present may appoint 
some other qualified elector to act in his place. If there be no 
judge of election present, or he refuses to act, such electors of 
the precinct or district as may then be present at the place of 
election, may fill the places of such judges by election from 
their number. The judges so appointed shall have the same 
power and be subject to the same penalties as other judges of 
election. 



474 ELECTIONS. [DIV. VIII. 

37. Clerks Of election.] § 37. The judges of election shall 
choose three persons having similar qualifications with themselves, to 
act as clerks of election, who may continue to act as such during the 
pleasure of the judges. But no more than two persons, of the same 
political party, shall be so chosen as such clerks of election for the 
same election district or precinct, [As amended, 1885. 

38. Oath.] § 38. Previous to any vote being taken, the judges 
and clerks of the election shall severally take an oath or affirma- 
tion, in the following form, to-wit : 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 
It ino s, and that I will faitJb fully discharge the dutie of the office of judge 
of election (or clerk, as the case may be), according to the best of my ability, 
und ttiat I have resided in this electi n district for one year next preceding 
this election, a d am entitled to vote at this election. 

39. By whom administered.] § 39. In case there shall be no 
judge or justice of the peace present at the opening of the elec- 
tion, or in case such judge or justice shall be appointed a judge 
or clerk of election, it shall be lawful for the judges of the elec- 
tion to administer the oath or affirmation to each other, and to 
the clerks of the election ; and the person administering such oath 
or affirmation, shall cause an entry thereof to be made and sub- 
scribed by him, and prefix to each poll book.(l) 

BALLOT BOXES AND POLL BOOKS. 

40. Ballot boxes.] § 40. The county board shall provide a 
sufficient number of ballot boxes, with secure locks and keys, at 
the expense of the county, for the several precincts and districts. 
There shall be an opening in the lid of each box not larger than is 
sufficient to admit a single closed ballot to be inserted therein at 
one time, through which each ballot voted shall be put into the 
box. 

41. Judges to keep ballot boxes, etc.] § 41. The ballot boxes 
shall be delivered to and kept by the judges of election, and by 
them kept and delivered over to their successors. 

42. Blanks, poll books, etc.] § 42. The county clerk shall pro- 
vide, at the expense of the county, proper blanks, poll books and 
other necessary election blanks for each precinct and district in 
his county, and cause a suitable number thereof to be delivered 
to the judges of election, at least ten days before any election is 
to be held. 

(1) The neglect of the judges or clerks of an election to take the prescribed oath 

does not vitiate an election ; neither does the irregular administration of the oath nave that effect. 
An oath irregularly administered— for example, upon a book other than the Bible— the partiea 
administering and taking it supposing it to be a Bible, is a valid oath. People v. Cook, 4 Seld. R. t 
87 See Taylor v. Taylor et al., 10 Minn. R., 107. 



©IV. VIII. J NOTICE OF ELECTION. 475 



CONSTABLES APPOINTED TO ATTEND ELECTIONS — ORDER. 

43. County board, or judges, may appoint.] § 43. The county 
board may appoint one or more constables to attend each place of 
holding elections, and preserve order during the election ; if no 
constable is appointed by the county board to attend any place of 
holding election, or if others shall be necessary to preserve order, 
the judges of election may appoint one or more constables for 
that purpose. 

44. Special constable— Compensation of constables.] §44. The 
judges of election may appoint any suitable person to act as a 
special constable during the election. Constables serving at such 
election shall be paid out of the county treasury, not exceeding $2 
per day for each days's service. 

45. Suppressing riot, etc.— Arrest] § 45. Any constable at- 
tending such election may call to his aid a sufficient number of 
citizens to arrest any disorderly person or suppress any riot or 
disorder during the election. Whoever conducts himself in a 
riotous or disorderly manner at any election, and persists in such 
conduct after being warned to desist, may be arrested without 
warrant. 

NOTICE OF ELECTION. 

46. Manner of giving notice.] § 46. At least thirty days previ- 
ous to any general election, and at least twenty days previous to 
any special election, except in cases otherwise provided for, the 
county clerk, in counties not under township organization, shall 
make out and deliver to the sheriff of his county, or in counties 
under township organization to the several supervisors of his 
county, three notices thereof for each precinct or district in which 
the election in such county is to be held. The notice may be 
substantially as follows :(1) 

Notice is hereby given, that on (give the date), at (give the place of 
holding the election and the name of the precinct or district), in the 
county of (name of county), an election will be held for (give the title of 
the several offices to be filled), which election will be opened at eight 
o'clock in the morning and continued open until seven o'clock in the after- 
noon of that day. 

Dated at , this day of , in the year of our Lord one thou- 
sand eight hundred and . 

A. B., County Clerk. 

Where the Judges and clerks of an election act under color of office, having been 
duly appointed, that is sufficient to constitute them officers de facto, and in such case it is imma- 
terial, so far as the validity of their election returns are concerned, whether they were sworn at 
the election or not. The law, in such case, presumes them to have been well appointed aud 
qualified. The People ex rtl. etc. ▼. HUliard, 29 111. R., 423. 

If the officers of election fail to perform their duty, the law provides a penalty 
t)ut the election is not necessarily rendered void. Taylor v. Taylor et al., 10 Minn. R., 107, 

(1) If an election he held, without necessity, at a different place from that desig- 
nated by law, the entire poll must be rejected. Chadvrick v. Melvin, Leading Cases on Elections. 
iBrightley) 251. 

On the subject of notice of elections, see ante p. 68, note " Township Organization Act." 



476 ELECTIONS. [DIV. VIIL 



47. Sheriff or supervisor to post] § 47. The said sheriff or 
supervisor to whom the notices are delivered, shall post 
up, in three of the most public places in each precinct or 
district, the three notices therefor at least fifteen days before the 
time of holding a general election, and at least eight days before 
the time of holding a special election. 

CONDUCTING ELECTIONS — RETURNS. 

A number of the sections under this caption have been modified in applica 
tion by the acb of June 22, 1891, known as the " Australian election law." and. 
some of them repealed wholly or partly by reason of their inconsistency with 
that aqt. Those in the latter category have been eliminated with references 
to the provisions that supersede taeai. « 

48. Time of opening and closing polls.] § 48. The polls shall 
be opened at the hour of seven o'clock in the morning and con- 
tinued open until five o'clock in the afternoon of the same day 
at which time the polls shall be closed ; but if the judges shall 
not attend at the hour of seven o'clock in the morning, or if it 
shall be necessary for the electors present to appoint judges ta 
conduct the election, as hereinbefore prescribed, the polls may* 
in that case, be opened at any hour before the time for closing 
the same shall arrive, as the case may require.(l) 

(1) Although the law may direct that the polls shall be closed at a certain hou 
specified, and this question is in issue, unless it be made to appear that votes were cast after tha* 
hour, which would change the result, the fact that the polls were kept open after that hou» 
would not render the election void. Piatt v. The People, 29 111. R., 72. 

It is held in New York that the provision as to the time of opening and closing the polls it 
directory; that, for instance, should the inspectors or judges, being misled by a defective time- 

5>iece, close the polls a few minutes before a particular hour directed by the statute or receive t 
ew votes after that hour, this will not render the election void. People v. Cook, 4 Seld. R., 92. 

A court of chancery has no power to prevent the holding of an election o.- 
officers, upon the alleged ground of a want of authority to hold such an election, the remedy 
therefor being complete at law by writ of quo warranto. The People ex rel. v. City of Qalesburg, 44 
HL R., 485 ; Walton, et al. v. Beveling et al„ 61 111. R., 201. 

"While a court of chancery will not interfere to determine which of two per- 
sons has been elected to office, or try the rights of parties to hold an office, yet, in case or an 
election upon the question of the removal of a county seat, which is claimed to have resulted in 
favor of removal, it is alleged that such was not the result, by reason of the election being ille- 

g,lly held, or the vote not being a fair one, a court of chancery will entertain jurisdiction at the 
stance of those impeaching the election, to determine where the county seat is, although that 
inquiry may incidentally involve the question, whether the vote had been fairly taken, and U 
fraud had intervened therein to purge the polls. Boren v. Smith et al., 47 I1L R., 482. Same do* 
trine held in The People ex rel. v. Wiant, 48 111. R.. 263. 

As to the proper officers and the necessity thereof.— An election is not void althoughhelct 
by persons who are not officers de jure, if they are officers de facto, and act in good faith under 
color of authority. Where an election is required by law to be held and conducted the same as in 
general elections, which law requires three judges of election and two clerks, and the election is 
held by one acting in the capacity of a moderator of a town meeting, with but one clerk, it will be 
absolutely void and cannot form the basis on which any rights caa be created or enforced. Lip- 
pineott et al. v. Town of Pana et al., 92 III. 24. 

The township authorities have no power to establish their polling places when more than. 
one is required. That can be done only by the county board. Williams v. Potter, 114 III. 628. 



DIV. VHI.] CONDUCTING EJECTIONS — RETURNS. 477 

49. Proclamation.] § 49. Upon opening the polls one of the 
clerks or judges of election shall make proclamation of the same, 
and at least thirty minutes before the closing of the polls procla- 
mation shall be made in like manner that the polls will be closed 
in half an hour.(l) 

50. Ballot box publicly exhibited, etc.— Locked— Keys.] § 50. 

Before any ballot shall be deposited in tne ballot box, the ballot 
box shall be publicly opened and exhibited, and the judges and 
clerks shall see that no ballot is in such box ; after which the 
box shall be locked and the key delivered to one of the judges, 
and shall not be again opened until the close of the polls. 

51. Poll lists— How kept. J § 51. Each clerk of the election 
shall keep a poll list, which shall contain a column headed " num- 
ber," and another headed ''names of voters." The name of each 
elector voting shall be entered upon each of the poll books by 
the clerks, in regular succession, under the proper headings, and 
the number of such voter placed opposite his name in the col- 
umn headed "number.' '(2) 

52. Ballots.] § 52. The manner of voting shall be by ballot. 

The form of the " official voting paper " that now must be used in all elec- 
tions, excepting elections of school trustees and directors, members of boards 
of education and officers of road districts in counties not under township 
organization, is prescribed in section 14 of the election act of June 22, 1891, 
in the following clause : See next section. 

Where an election held in a town was void, the legislature has no power under the 
constitution, to pass a law making the same valid. Marshall et al. v. 6iMman et al., 61 111. R., 218. 

(1) The usual form of proclamation of opening and closing the polls is as fol- 
lows: 

Hear ye: hear ye: hear ye. the potts of this election are now open ; or, the polls of this election 
will b« closed in thirty minutes. 

(2) Neither a heading nor the signature of the inspectors or clerks were re- 
required to make the poll list admissible, to prove thai a person voted. People v. Pease, 27 N. Y. 
(IS Smith) R., 45. 

Inspectors or Judges of elections are merely ministerial officers, and their action 
can be reviewed by the courts. People v. Pease, 27 N. Y. (13 Smith) R., 45. 

Where the provisions of the election law have been entirely disregarded by the ameer*, and 
their conduct has been such as to render their returns utterly unworthy of credit, tne entire poll 
will be rejected. But even in such case, legal votes proved to have been actually polled, must 
be computed. LitUefield v. Green, 1 Legal News, 330. See 1 Brewster (Penn.), 60. 

The name of the person for whom the elector intends to vote should be written 
In full upon his ballot. It is held in Michigan, under the like provisions as in the text, that a 
ballot for J. A. Dyer cannot be counted for James A. Dyer; that such a ballot does not contain 
the name of the person intended to be voted for, but merely the initial letters; and no evidence 
is admissible to snow that such a ballot was intended for James A Dyer. But when, however, 
the designation of an individual on a ballot is by an abbreviation sanctioned by common usage, 
and universally understood, the ballot may be counted for the person for whom it was intended 
Thus, a vote for Jas. A. Dyer may be counted for James A. Dyer. A slight error in the spell- 
ing of a name on a ballot, it is presumed would not prevent a ballot from being counted for the 
person for whom it was evidently intended. People v. Tisdale, 1 Dougl. (Mich.) R., 50; People v. 
Mggim. 3 Mich. R.. 233; Carpenter v. Ely, 4 Wis. R., 420. 

Ballots cast for Michael Pinegan, being of the same sound, it was held should have been 
counted for Michael Finnegan, the person intended. Pinnegan v. Mayworm, 5 Mich. R., 146. 

Under the law authorizing the election of two court commissioners, an election was held, but 
ri was conducted, in all respects, as if only one was to be chosen; two persons were opposing 
candidates, and each elector voted for one of the two, but in no instance did a ballot contain 
more than one name for this office. It was held that only the one receiving the higfiest number 
of votes was chosen, and as to the other there was a failure to elect. People v. Commissioners oj 
Kent Co., 11 Mich. R., 111. 



478 ELECTIONS. [DIV. VIII. 



53. Form of ballot.] Section 14 of the act of June 22, 1891, 
prescribes the form of the ballot in the following clauses : 

Sec. 14. The names of all candidates to be voted for in each election dis- 
trict or precinct shall be printed on one ballot ; all nominations of any politi- 
cal party or group of petitioners being placed under the party appellation or 
title of such party or group as designated by them in their certificates of 
nomination or petitions, or if none be designated, then under some suitable 
title, and the ballot shall Contain no other names, except, that in case of 
electors for president and vice-president of the United States, the names of 
the candidates for president and vice-president may be added to the party or 
political designation. 

* * * * * The names of candidates shall be printed in capital letters 
not less than one-eighth nor more than one-fourth of an inch in height, and 
at the beginning of each line in which a name of a candidate is printed a 
square shall be prin ed, the sides of which shall not be less than one-fourth 
of an inch in length. The list of candidates of the several parties aod groups 
of petitioners shall be placed in separate columns on the ballot in such order 
as the authorities charged with the | >rinting of the ballots shall decide. [See 
pp. 511, 513, post. 

54. Form of cumulative ballots.] Section 17 of the act of 

June 22, 1891, is as follows: 

Sec. 17. It may be stated in the certificates of nomination of candidates 
for representatives in the general assembly what number of votes it is desired 
shall be printed as given to such candidate or candidates, and in such case 
the ballots shall be so printed. In any case where the certificate of nomination 
does not so state, then no number of votes shall be printed on the ballots as 
to the candidate or candidates named in such certificates. In canvassing the 
vote for representatives in the general assembly, if the ballot has been so 
marked as to indicate tha; the voter intends to vote for one person only for 
that office, it shall be counted three votes for that candidate; if it has been 
so marked as to indicate that the voter intends to vote for two persons for 
representatives, it shall be counted one and one -half votes for each of such 
candidates., unless otherwise on the ballot expressly stated; and if ib has been 
so marked as to indicate an intention to vote for three persons for such office, 
it shall be counted one vote for each of such candidates, unless otherwis • on 
the ballot expressly stated; and if it has ben t-o marked as to indi ate an 
attempt to v ;te foi more pers ns for representatives than the voter is entitled 
to vote for, the votes for representatives on such ba lot shall not be counte :. 
[See p. 513, post. 

55. Manner of receiving and depositing ballot.] § 55. 

The ballot shall be folded by the voter and delivered to one of the 
judges of election; and if the judges be satisfied that the person offer- 
ing the vote is a legal voter, the clerks of election shall enter the name 
of the voter, and his number, under the proper heading in the poll 
books, and the judge (to whom the voter delivered it) shall immediately 
put the ticket into the ballot box. 



DIV. Vni.] CONDUCTING ELECTIONS — RETUBNS. 479' 

56. No adjournment or recess.] § 56. After the opening of the 
polls no adjournment shall be had, nor shall any recess be taken, 
until all the votes cast at such election shall have been counted 
and the result publicly announced. (1) 

57. Canvass of votes.] § 57. Immediately upon closing the- 
polls, the judges shall proceed to canvass the votes polled. They 
shall first count the whole number of ballots in the box. If the 
ballots shall be found to exceed the number of names entered on 
each of the poll lists, they shall reject the ballots, if any be found 
upon which no number is marked; if the number of ballots still 
exceeds the number of names entered on each of the poll lists, 
they shall be replaced in the box, and the box closed and well 
shaken and again opened, and one of the judges shall publicly 
draw out and destroy so many ballots, unopened, as shall be equal 
to such excess ; and the ballots or poll lists agreeing, or being 
made to agree, the board shall proceed to count, and estimate 
and publish the votes ; and when the judges of election shall 
open and read the tickets, each clerk shall carefully mark down 
upon the tally-list the votes each candidate receives, in a separate 
column prepared for that purpose, with the name of such candi- 
date at the head of such column, and the office, designated by 
the votes, such candidate shall fill.(2V 

'j j this section (57), was added by the amending act of June 27, 1885, the 
? j. .Suin^ • 

e '*Jho^ofcc3 shall be canvassed in the room or place where the election is 
heir., ?,iici * T ie Ridges shall not allow the ballot bo::, or any oi il\o ballots, or 
eiOlicr o^jho poll lists, or either of the * »"»rj rasper.?, W Co© remoreO o;* carried 
away from ;.uch room or place, until i.ie cr&vaes oC 5feS voserj is completed, 
and tiiCj returns carefully enveloped and se£l6& U& 3& jSL'OYiclcd fov law." 

Excepting this addition and the prescribed mods of counOinr; thD Votes, tlie 
section has been effectively superseded . ;g>y uhe "Australian voting act," which 
see. 

58. Irregular ballots.] See section 26, "Australian voting act," 
p. 517, post. 

59. Ballots strung a»d returned.] See section 27, "Australian 
voting act, ; ' 

00. Examination of ballot in contested election.] See sec- 
tion 27, " Australian voting act." 

(1) Where th« judge* of an election took a recess of an hour for dinner, and it 
was not for any improper purpose and no fraud or wong of any sort was committed, this was 
held not sufficient grounds for rejecting the entire rote of the township, lite Board of SupervU 
tor$ v. The People, ex rel., 65 111. R., 360. 

(2) The hallots cast at an election are hetter evidence than the tally list made 
from them of the number of votes. People v-. Holden, 28 Cal. R., 123. 

Where one Joseph Talkington was a candidate for constable, and ballots were cast for " Talk- 
Ington," held that they should be counted for Joseph Talkington. Talkington v. Twrner, 71 I1L 
IL.235. 



480 ELECTIONS. [dIV. VIIL 

61. Form of return.] § 61. When the votes shall have been 
examined and counted, the clerks shall set down in their poll 
books the name of every person voted for, written at full length, 
the office for which such person received such votes, and the 
number he did receive the number being expressed in words at 
full length ; such entry to be made, as nearly as circumstances will 
admit, in the following form, to-wit : 

At an election held at , in the county of , and state of Illi- 
nois, on the day , in the year of our Lord one thousand eight 

hundred and , the following named persons received the number of 

votes annexed to their respective names, for the following described offi- 
ces, to-wit: (name of candidate) had (number of votes) for (title of office), 
(and in the same manner for any other person voted for.) Certified by us. 

A. B.,) 

C. D., \ Judges of election, 

E.F.J 
Attest : G. ^H. , j Clerk8 y e i ect i on , 

62. Returns to be delivered— Canvass.] One of the lists of 

voters with such certificate written thereon, and one of the tally papers 
footed up so as to show the correct number of votes cast for each per- 
son voted for, shall be carefully enveloped and sealed up, and put into 
the hands of one of the judges of election, who shall, within twenty- 
four hours thereafter, deliver the same to the county clerk, or his 
deputy, at the office of said county clerk, who shall safely keep the 
same. Another of the lists of voters, with such certificate written there- 
on, and another of the tally papers footed up as aforesaid, shall be care- 
fully enveloped and sealed up and duly directed to the secretary of 
state, and, by another of the judges of election, deposited in the near- 
est post-office, within six hours after the completion of the canvass of 
the votes cast at such election, which poll book and tally list shall be 
filed and kept by the secretary of state for one year, and certified 
copies thereof shall be evidence in all courts, proceedings and election 
contests. Another of the lists of voters, with such certificate written 
thereon, and another of the tally papers, footed up as aforesaid, shall 
be carefully enveloped and sealed up and delivered by the third one 
of the judges, without delay, in counties under township organization, 
to the town clerk of the town in which the district may be ; and in 
counties not under township organization, they shall be retained by one 
of the judges of election, and safely kept by said town clerk and judge, 
for the use and inspection of the voters of such district, until the next 
general election. Before said returns are sealed up, as aforesaid, the 
judges shall compare said tally papers, footings and certificates, and 
see that they are correct and duplicates of each other, and certify to the 
correctness of the same. [As amended, 1887. 

63. Compensation of jndges and clerks.] I 63. All judges 
and clerks of election, in counties of the first and second class shall be 
allowed the sum of three (3) dollars per day for their services, and judges 
and clerks of elections in counties of the third class the sum of five (5) 
dollars per day for their services. [As amended June 24, 1895.] 



DrV. VIII.] QUALIFICATION OF VOTERS. 481 

64. Challengers.] § 64. The judges of election shall allow 
at least one, and not more than two legal voters of each party to 
the contest, to be chosen by the parties respectively, into the 
room where the election is held, to act as challengers of voters 
at such election; and such challengers may remain with the 
board of election until the votes are all canvassed and the result 
declared. 

QUALIFICATION OF VOTERS. 

Section. 

bo. Who may vote. 

66. What constitutes residence. 

67. Affidavit of qualification. 

68. Affidavit of witness. 

69. Who may adminster oath. 

70. Convicts — Disqualification. 

65. Who may vote.] § 65. Every person having resided in 
this state one year, in the county ninety days, and in the elec- 
tion district thirty days next preceding any election therein, who 
was an elector in this state on the first day of April, in the year 
of our Lord 1848, or obtained a certificate of naturalization be- 
fore any court of record in this state prior to the first day of 
January, in the year of our Lord 1870, or who shall be a male 
citizen of the United States, above the age of twenty-one years, 
shall be entitled to vote at such election. (1) [See Const., art 
7,§1. 

(1) See Const., Art. VII, Sec. L 

Each, state lias the undoubted right to prescribe the qualifications of its own voters 

In the absence of some provision to that efiect, the act of naturalization would not of itself con- 
fer on the person naturalized the right to exercise the elective franchise. The Qualification of a 
voter at a Congressional election depends on the law of the State in which the elective franchise 
is exercised, and is dependent on the municipal regulations ol the State. Spragina v. HoughUm, 
2 Scam. R,. 395. Former decisions to the foregoing effect, must of course be taken subject to the 
provisions of the 15th amendment to the Constitution of the United States. 

Unless the legislature shall make citizenship an indispensible qualification to the enjoyment 
of the elective franchise, and the Constitution clearly admits of the exercise of that power by 
that body, the supreme court cannot add such a prerequisite by construction. Spragins v. Botcgh- 
ton, 2 Scam. R., 409. 

The undergraduates of a college, who are free from parental control, and regard 
the place where the college is situated as their home, having no other home to return to in case 
of sickness or domestic affliction, are as much entitled to vote as any other resident of the town 
pursuing his usual avocation. It is pro hoc vice, the home of such students. Their permanent 
abode, in the sense of the statute. Dale v. Irwin, 78 111. R., 170. 

Aliens who -were minors on the first day- of April, 18*8, were not electors, and 
consequently are made voters by the constitution of 1870, certificates of naturalization grained 

Erior to Jan. 1, 1870, entitled the parties receiving the same to vote, but not their minor sonsalter 
eeoming of age. Cit% of Beardstovm v. City of Virginia, 76 111. R., 34. 

Where a person of foreign birth, who was a minor -when he came to this 
country, testified that he had never been naturalized, and did not know that his father had 
been, it was held, thrt this afforded prima facie that such person was not entitled to vote. Beards- 
tovm et ai. v. Virginio et aL, 76 111. R., 34. 

Under the act of Congress of 1802, conferring jurisdiction upon certain courts for the purpose 
of naturalization, oily courts of record for general and not for special purposes, were Intended 
to be embraced witLin its provisions. " The Marine Court of the city of New York " is not a 
court of record within the meaning of the act of Congress conferring jurisdiction upon courts of 
record to admit aliens to citizenship ; and hence a person so admitted by an order of that court 
does not become a qualified elector, and cannot: maintain an action, under the act of 1849, for 
rejection of his vov Mills et al. v. McOabe, 44 ILL R., 194. 



482 ELECTIONS. [DIY. VUL 

66. Residence.] § 66. A permanent abode is necessary to con- 
stitute a residence within the meaning of the preceding section.(l) 



The question whether the person offering to vote Is a naturalized, foreigner 

or an inhabitant, and entitled to vote, the judges of election have no right to investigate, under 
the existing laws. If such person takes the oath prescribed in the law, the duty is imperative 
upon the judges to receive his vote unless the oath is proved to be false. Spragins v. Houghton, 
2 Scam. R., 416. If, however, the judge should of his own knowledge know the oath to be false , 
be would not be liable to the penalty under the law should he refuse to receive the vote for 
that reason. Mills et al. v. McCabe, 44 111. R., 194. 

(1) The " permanent abode " prescribed by the statutes as the criterion of the 

residence required to constitute a legal voter, means nothing more than a domicil, a home, which 
the party is at liberty to leave as interest or whim may dictate, but without any present intention 
to change it. Dale v. Irwin, 78 111. R., 170. 

The term inhabitant is derived from the Latin habito, and signifies live in, to dwell in ; and is 
applied exclusively to one who lives in a place, and has there a fixed and legal settlement. The 
residence, however, is to be bona fide, and not casual or temporal. Spragins v. Houghton, 2 Scam. 
R., 396. 

The residence is a question of intention from all the facts and Circumstances in 
each case. Kitchell v. Burgwin et ux., 21 III. R., 44 ; Ives v. Mills, 37 111. R.. 75 ; WaUus v. The People 
a 111. R., 174, 178. ' 

Residence and habitancy are generally synonymous. A residence is different 
from a domicil, although it is a matter of great importance to determine the place of domiciL 
Residence indicates permanency of occupation, as distinct from lodging, or boarding, or tempo- 
rary occupation, but does not include so much as domicil, which requires an intention con- 
tinued with residence. Bouv. Law Diet., " Residence." 

A domicil may be denned " a residence at a particular place, accompanied with 
positive or presumptive proof of continuing it an unlimited time," and is a conclusion of law on 
an extended view of facts and circumstances. Qrier v. 0' Daniel, 1 Binn. R., 352. 

A resident is a person coming into a place with an intention to establish his domicil 
or permanent residence, and actually executing that intention by taking a home or lodging 
opening a store or the like. United States v. The Penelope, 2 Peters Adm. R., Dec. 450. 

Residence is a question of intention. By a removal out of the State, without an in- 
tention permanently to reside elsewhere, a person will not lose his residence, nor will he acquire 
one by a mere intention to remove permanently, not followed by actual removal. The fact of 
voting at a particular place is very strong evidence of the voter's intention to claim a domicil at 
the place of voting. McCrary's Election Laws, 3 34. Casey's Case, 1 Ash. R.. 126. But a person 
having a permanent home in one town within the state, and being a legal voter in such town, 
is not necessarily disqualified by a temporary absence in another town, and being there ad- 
mitted to vote. Lincoln v. Hapgood, 11 Mass. R„ 350. McCrary's Election Laws, g 34. 

To effect a change of domicil there must be intention and act united. 2 Kent 
Com., 43; Crawford v. Wilson, 4 Barb. R., 504. It is not enough that one intends to change it and 
believes he has done in law what amounts to a change. The intent and fact must concur,' and 
his opinion cannot produce the result- Chainey. Wilson, 8 Abbott's Pr., 78: Smith v. Peovleexrel 
44111. R., 22. 

If a person goes out of a State, county or town, for a particular purpose. 
and does not take up a permanent residence elsewhere, he cannot be considered as having re- 
moved from the State, county or town, so as to affect his domicil and inhabitancy. Sears v. City 
of Boston,! Mete. R., 250; Sacket's Case, 1 Mass. R., 58; Abington v. Boston, 4 Mass. R., 312. 

The temporary absence of a person or his family though extending over a series 
of years, does not necessarily, without regard to his intentions, make him lose his residence or 
deprive him of his rights as an elector. Harbaugh v. Oicott, 33 Mich. R., 241. 

A man's domicil is not changed by an absence for a temporary purpose, with or without his 
family. Cadwalader v. Howell, 3 Harr. R., 138 ; State v. Judge, 13 Al. R., 805. 

A person's home or domicil is his habitation fixed in any place, without any present intention 
of removing therefrom. Putnam v. Johnson, 10 Mass. R., 488. 

A domicil once fixed will continue notwithstanding the absence of the party 
until a new domicil is acquired. Jennison v. Hapgood, 10 Pick. R., 77. 

A domicil once acquired is presumed to continue until a new one is obtained, in fact and bv 
intention. Glover v. Glover, 18 Ala. R., 365. 

Unless one's change of domicil is complete and final, it does not constitute an 
abandonment of one's country. Hardy v. DeLeon, 6 Texas R., 211 ; Brown v. Smith. 11 Eng Law 
and Eq., 6; Leech v. Pillsbury, 15 N. Hamp. R., 137. 

Every person has a domicil of origin, which he retains until he acquires another, and the one 
thus acquired is in like manner retained. Thorndike v. City of Boston, 1 Mete. R 242 : KUburn v 
Bennett, 3 Mete. R., 199. 

A person having a legal settlement in one place, that settlement coutinues until 
another is acquired in the State. A settlement in another State or county will not change that; 
acquired in this State, if he returns to it. Payne v. Town of Dunham, 29 111. R. 129. 



DIV. Vni.] QUALIFICATION OF VOTERS. 483 

67. Affidavit of qualification.] §67. Whenever, at any gen- 
eral or special election, in any precinct, district, city, village, 
town or ward, any person offering to vote is not personally know a 
to the judges of election to have the qualifications mentioned 
in the two preceding sections, if his vote is challenged by a legal 
voter at such election, he shall make and subscribe an affidavit, 
in the following form, which shall be retained by the judges of 
election, and returned by them with the poll books : 

State of Illinois, ) ea 

County of Cook. J bS " 

I, , do solemnly swear (or affirm) that I am a citizen of the United 

States, (or, "that I was an elector on the first day of April, A. D. 1848," 
or, "that I obtained a certificate of naturalization before a court of record 
in this state prior to the first day of January, A. D. 1870," as the case may 
be,) that I have resided in this slate one year, in this county ninety days, 
and in this election district thirty days next preceding this election ; that 
I now reside at (here give the particular house or place of residence, and, 
if in a town or city, the street and number,) in this election district; that 
I am twenty-one years of age, and have not voted at this election ; so help 
me God, (or, "this I do solemnly and sincerely affirm," as the caso 
may be) . 

Subscribed and sworn to before me, this day of , A. D. 18 — . 

68. Affidavit of witness.] § 68. In addition to such an affida • 
vit, the person so challenged shall produce a witness, personally 
known to the judges of election, and resident in the precinct (or 
district,) or who shall be proved by some legal voter of such 
precinct or district, known to the judges to be such, who shall 
take the oath following, viz : 

I do solemnly swear (or affirm) that I am a resident of this election pra* 
cinct (or district,) and entitled to vote at this election, and that I havtt 
been a resident of this state for one year last passed, and am well acquai nte«fc 
with the person whose vote is now offered ; that he is an actual and bona 
fide resident of this election precinct (or district), and has resided herein 
thirty days, and, as I verily believe, in this county ninety days, and i» 
this state one year next preceding this election. [As amended by act ap 
proved May 24, 1877. 

69. Who may administer oath.] § 69. The oath, in each cas« t 
may be administered by either of the judges of election, or by 
any officer, resident in the precinct or district, authorized by la'*r 
to administer oaths. 

70. Convicts — disqualification.] § 70. No person who has 
been legally convicted of any crime, the punishment of which is con- 
finement in the penitentiary, or who shall be convicted and sentenced 
under section eighty-three of this act shall be permitted to vote at any 
election, unless he shall be restored to the right to vote by pardon, or 
by the expiration of the term of his disfranchisement under section 
eighty-three of this act. 

A party does not forfeit Ills residence in si precinct in which he was a voter merely 
by becoming a couuty charge and an inmate of the pour house. Dale v. Irwin, 76 111 R., 170. 



484 elections. [Drv. vin. 



CANVASSING VOTES — CERTIFICATE OF ELECTION. 

Section. 

71. Canvassing votes — Abstracts. 

Tl. Certificates of election. 

73. Tie vote — Notice to candidates. 

74. Drawing lot — Certificate. 

75. Compensation of judges and clerks. 

76. Abstracts sent to secretary of state. 

77. How abstracts sent. 

78. Canvass by secretary of state, etc.— Commissions— Proclamation. 

71. Canvassing votes— Abstracts.] § 71. Within seven days 
after the close of the election, the county clerks of the respective 
counties, with the assistance of two justices of the peace of the 
county, shall open the returns and make abstracts of the votes 
in the following manner, as the case may require : Of votes for 
governor and lieutenant governor, on one sheet ; of votes for other 
state officers, on another sheet ; of votes for presidential electors, 
on another sheet ; of votes for representatives to congress, on an- 
other sheet ; of votes for judges of the supreme court, on another 
sheet ; of votes for clerks of the supreme court, on another sheet ; 
of votes for judges of the circuit court, on another sheet; of 
votes for senators and representatives to the general assembly, 
on another sheet ; of votes for members of the state board of 
equalization, on another sheet ; of votes for county officers, on 
another sheet. The foregoing abstracts shall be preserved by the 
eounty clerk in his office. (1) 

(1) A statement of the number of votes given at an election for the respective 
«andidates, required to be made out and filed by the board of county canvassers, is prima facie 
evidence only of the facts stated in it. The county canvass may be corrected, in a proceeding 
for that purpose, by the township canvassers, and the latter by the ballots themselves. The de- 
termination of the board of county canvassers of the persons elected is prima facie evidence only 
of their election. A party may go behind the canvass to the ballots to show the number of votes 
east for him. The duties of the board of canvassers being wholly ministerial. So held in Mich- 
igan. People v. Vancleve, 1 Mich. R., 362. See also Attorney General ex rel. Carpenter v. Ely, 4 Wis. 
R.,420. 

When the vote of an election district is rejected toy the county canvassers, 
because no poll-list with the oath of the judges of election accompanied the statement of voters 
made up and returned to the proper officers, the statement being regular in all other respects, and 
delivered by and to the proper officers within the time prescribed by law, the testimony oi the 
town clerk, in a proceeding testing the regularity of the election, is competent to show by the 
records kept in his office, that the election was regularly notified and conducted, and that 
the votes were ascertained and canvassed according to law, and also to show the number of 
votes cast for the different candidates. The chairman of the town board, whose vote is rejected 
for the above reasons, is a proper witness to show that he acted as one of the judges of election, 
that the judges were duly sworn before the polls were opened, and that the election was con- 
ducted according to the statute. Attorney General ex rel. Carpenter v. Ely, 1 Wis. R., 420. 

Although the person who received the greatest number of votes for a particular 
office is ineligible to that office, such votes are not thereby a nullity, butshould be counted by the 
canvassers ; and the person who received a less number of votes in such case, although eligible, 
can not be regarded as elected. Dunning ex rel. etc. v. Giles, 1 Chand. (Wis.) R., 112. Off ex rel. etc 
V. Smith, 14 Wis. R.. 497. 

The county canvassers have no power not expressly given them by law. They 
must perform their duties precisely as prescribed by the statute, and can not go beyond it. And 
this relates to State and town canvassers. Breshford ex rel. etc. v. BriLston, 4 Wis. R., ,567. Can- 
vassers are mere ministerial officers; it is their duty simply to cast up the votes and determine 
the result ; they have no judicial power. State v. Seers, 44 Mo. R., 223. 



DIV. Vm.] CERTIFICATE OF ELECTION. 485 



72. Certificates of election.] § 72. The county clerk shall 
make out a certificate of election to each of the persons having 
the highest number of votes, for the several county offices 
and deliver such certificate to the person entitled to it, on his 
application. (1) 



*. ^ an 1 1 nforn »atlon i» the nature of a quo warranto to test tii« «.*.* ~# ■ *, 

between the parties claiming the same, the court is bJSd Rectify mSakes^nl ^SSnS"* 
the canvassing boards. Attorney General ex rel. Carpenter v. Ely 4 Wis™ 420 om ^ons of 

and not from the returns. The PeopTe ex rel. etc. vKUduff it 111 R 492 ° m the elect10 ^ 

«e™^ 

terial, and no judicial or aisSretionarv powerear™?fer?ed un^n him 'S 5™ ? ur f ly mmto - 

ScS 

The certificate of election is prima facie *m#, ♦« *h« ,»«* j , „ 

Where the certiacate required of the county clerk in a case for the removal of a county .eat. 



486 ELECTIONS. [DIY. VKL 

73. Tie Tote.] § 73. When two or more persons receive an 
equal and the highest number of votes for an office to be filled 
by the county alone, the county clerk shall issue a notice to such 
persons of such tie vote, and require them to appear at his office, 
on a day named in the notice, within ten days from the day of 
election, and determine by lot which of them is to be declared 
elected. 

74. Drawing lots— Certificate.] § 74. On the day appointed, 
the clerk and other canvassers, or, in case of their absence, the 
state's attorney or sheriff shall attend, and the parties interested 
shall appear and determine by lot which of them is to be declared 
elected; and the clerk shall issue his certificate of election to the 
person thus declared elected. 

75. Compensation of judges and clerks.] § 75. It shall be the 
duty of the county clerk, on the receipt of the election returns 
of any general or special election, to make out his certificate, 
stating the compensation to which the judges and clerks of each 
election may be entitled for their services, and lay the same be- 
fore the county board at its next session ; and said board shall 
order the compensation aforesaid to be paid out of the county 
treasury. [See § 63. 

76. Abstracts sent to secretary of state.] § 76. Immediately 
after the completion of the abstracts of votes, the county clerk 
shall envelope and seal up a copy of the abstracts of votes fox 
governor, lieutenant governor, secretary of state, auditor of pub- 
lic accounts, treasurer, attorney general, and superintendent of 
public instruction, and indorse upon it in substance, "Abstracts 

of votes for state officers from county," and address it, 

"The Speaker of the House of [Representatives." The county 
clerk shall at the same time, envelope and seal up a copy of each 
of the abstracts of votes for other officers, and indorse the same 
so as to show the contents of the package, and direct the same 
to the secretary of state. The several packages shall then b^ 
placed in one envelope and addressed to the secretary of state. 
[See Const., art. 5, § 4. 

77. How abstracts sent.] § 77. Such abstracts shall be trans- 
mitted to the secretary of state by mail, or, in case it shall be 
necessary, by special messenger. 

78. Canvass by secretary of state, etc.— Commissions, etc.— 
Proclamation.] § 78. The secretary of state, auditor, treasurer 
and attorney general, or any two of them, in the presence of the 

omitted to state the number of votes cast at the election, so it might be seen whether the propo 
eition had been carried or lost, the returns of the judges and clerks of election may be resorted 
to for the purpose of ascertaining that fact. The object of such an election will not be defeated 
tor the want of such a statement in the certificate. The People ex reU v. Wiant, 48 111, K., 263. 



DIV. Till.] OFFENSES AND PENALTIES. 487 

governor, shall proceed within twenty days after the election, and 
sooner, if all the returns are received, to canvass the votes given 
for representatives to congress, judges of the supreme court, clerks 
of the supreme court, judges of the circuit court, senator, repre- 
sentatives to the general assembly, and members of the state 
board of equalization, respectively ; and the persons having the 
highest number of votes for the respective offices shall be declared 
duly elected; but if it appears that more than the number oi 
persons to be elected have the highest and an equal number of 
votes for the same office, the secretary of state, in the presence 
of the other officers and the governor, shall decide by lot which 
of such persons shall be elected ; and to each person duly elected, 
the governor shall give a certificate of election or commission, 
as the case may require, and shall cause proclamation to be made 
of the result of the canvass. 

OFFENSES AND PENALTIES* 

79. Liquor.] § 79. No spirituous, malt, vinous or intoxicat- 
ing liquor shall be sold or given away at retail, nor shall any sa- 

Witien no certificate or other formal mode of making known to a person his 

election to a public office is required by law, the result of the election, as ascertained and an- 
nounced at the close, is conclusive upon the election of officers, and can not afterwards be re- 
considered or varied. State v. Warren, 1 Houston (Del.) R., 39. 

In a proceeding toy quo warranto to try the right to an office elective by the 
people, it is competent to go behind the certificate to ascertain the decisive fact of who received 
the most legal votes. (Denio, C. J., and Wright and .Marvin, justices, dissenting.) People v 
Pease, 27 N. Y. (13 Smith), R., 46. 

The supreme court has no power to decide upon the right of a party to hold 
• seat in the legislature, but it may compel the proper officers to give the proper credentials to 
enable the party to assert his claim before the proper authority. The award of a certificate U 
either candidate under the mandate of the court will not determine his election. FarreU 4 
Bryant v. Colby, 2 Minn. R., 180; The People ex rel, v. HiUiard, 29 111. R., 413. 

Mandamus lies to compel the clerk to make out and deliver the certificate of election 
People ex rel. v. Rilliard, 2S 111. R., 413. And to compel the announcement of the result of th« 
canvass. People ex reL v. Salomon, 46 111. R., 415. 

The right to an office dependent on an election by the people, is to be deter- 
mined by the number of legal votes received at the election, and not by the certificate of elec- 
tion, nor by the governor's commission. Ex-parte Reed, 50 Ala. R., 439. 

The decision of the canvassers of an election affords prima facie evidence of the 
legal election of the person found to have received a plurality of the votes cast, and unless his 
title to the office is contested in some mode known to the law, he will be entitled te the office for 
the term for which he was elected. People ex rel. Evans v. Callaghan, 83 111. R., 128. 

Our institutions rest upon the principle that the controlling power is vested in the majority; 
and in the absence of any provision of law to the contrary, the will of any corporation or other 
community is properly declared only by the voice of the majority. State v. Fagan % 42 Conn. R., 33. 

A person elected to a county office, although he receives no official notice of his election, must 
qualify within the time prescribed by law. The neglect or refusal of the county clerk to make 
out his certificate of election, in compliance with the statute, will not impair his title to the office. 
Spooner ex rel. etc. v. Elderkin, 5 Wis. R., 300. 

Offlceis elected on the proper day, refusing to qualify, become officers de facto, and their acts 
are valid as to third persons, and can only be inquired into directly, not collaterally. Coles 
County ▼. Allison, 23 m. R., 437. See People v. Collins, 7 Johns. R., 549; People t. Runkle, 9 Johns. 
E., 147. 

Mandamus la the proper remedy against any officer to obtain possession of seals, books, papers, 
muniments, or other property belonging to corporations. The People ex reL Brewster & Jones v. 
KUduff. 15 in. R., 502. 



488 ELECTIONS. [diy. vm. 

loon or bar room, or place where such liquor is so sold or given 
away, be open upon any general or special election day within 
one mile of the place of holding an election. Whoever violates 
the provisions of this section shall be fined in a sum not less 
than 25 nor more than $100. It shall be the duty of the sheriff, 
coroner, constables and other officers of the county, and magis- 
trates, to see that the provisions of this section are enforced. 

80. False swearing.] § 80. If any person whose vote is chal- 
lenged, or any witness sworn under the provisions of this act, 
shall knowingly, willfully and corruptly, swear falsely, he shall 
be deemed guilty of perjury, and on conviction thereof shall be 
punished accordingly. 

81. Illegal voting. § 81. Whoever unlawfully votes more than 
once at any election, or offers to vote after having once voted ai 
such election, or knowing that he is not a qualified voter at an 
election, willfully votes at such election, shall, on conviction 
thereof, be fined in a sum not exceeding $1,000, or imprisoned in 
the county jail not exceeding one year, or both, in the discretion 
of the court. (1) 

82. Other offenses.] § 82. Whoever willfully aids or abet* 
any one not legally qualified to vote at an election, in voting ox 
attempting to vote, at such election ; or, 

2. Attempts by deceit to induce an elector to vote contrary to his 
intention; or 

3. Fraudulently changes his ballot; or 

4. Attempts to unlawfully influence his vote ; or 

5. Offers any reward or bribe to gain his vote; or 

6. By bribing or any corrupt means attempts to prevent his voting ; or 

7. G-ives or offers to give any bribe to any election officer as a con- 
sideration for some act to be done or omitted; shall, on conviction, be 
fined not exceeding $1,000, or be imprisoned not longer than one year, 
or both. 

83. Bribery — conviction — disfranchisement.] I 83. Any 

person who shall solicit, request, demand or receive, directly or indirectly, 
any money, intoxicating liquor or other thing of value, or the promise 
thereof, either to influence his vote, or to be used, or under the pre- 
tense of being used, to procure the vote of any other person or 
persons, or to be used at any poll or other place prior to 
or on the day of an election, for or against any candidate 

(1) The poll lists are tine highest and hest evidence ofwho voted at an election, and 
when; and when it does not appear from them that the defendant voted in his real name, or in 
the name by which he is indicted, or that there is a name on the poll list representing the ballot 
cast by him, there can be no conviction for illegal voting. Wilson v. State, 52 Ala. R., 299. 

A minor who is otherwise duly qualified, cannot he convicted of illegal voting 
because he was not of the requisite age, if he voted under the honest belief, induced by informa- 
tion from parents, relatives, or acquaintances having knowledge of the time of his birth, that he 
had obtained his majority. Gordon v. Slate, 52 * la. K„ 308. 



DIY. VIII. 1 OFFENSES AND PENALTIES. 489 



for office, or for or against any measure or question to be voted upon at such 
election, shall be deemed guilty of the infamous crime of bribery, in elections, 
and upon conviction thereof in any court of record, shall be sentenced to 
disfranchisement by the judge of such court for a term of not less than five nor 
more than fifteen years, and to the county jail not less than three months nor 
more* than one year, and to pay the cost of prosecution and stand committed 
to the county jail until such costs shall be fully paid. That for a conviction 
of a second offense under this section, the first being alleged and proven, such 
second offender shall be by the sentence of the court forever thereafter dis- 
franchised and deprived of the right to vote at an election in this state, and 
be imprisoned in the county jail not less than one year, and be committed to 
jail in default of payment of costs of prosecution until such costs are fully 
paid. Prosecution may be had under this section by indictment in the cir- 
cuit court, or by information in the county courts, and the effect of a sen- 
tence of disfranchisement in either of said courts, both having jurisdiction 
of offenses hereunder, shall be to deprive such persons sentenced of the 
right to vote at any general or special election, or town meeting, within this 
state for the period of time fixed by the court where such person shall be 
convicted under this section. Any candidate or other person paying, furnish- 
ing or promising to pay ©r furnish or bribing such person, with money, 
intoxicating liquor, or other thing of value, or the promise thereof, shall not 
bo liable to punishment therefor, but shall be a competent witness and com- 
pelled to testify in prosecution under this section. Solicitation by any person 
of a loan of money, or the purchase of any thing of value, or of liquor by the 
drink or treat to influence or effect his vote, or any other subterfuge, shall be 
lcemed a violation hereof. 

Second — Any person who shall have been legally convicted and dis- 
franchised by a court of competent jurisdiction who shall, before the expiration 
of his term of disfranchisement, vote or offer to vote at any general or 
special election, or town meeting within this state, shall, upon indictment 
and conviction thereof in a court of competent jurisdiction, be confined in 
the penitentiary for a term of years not less than one nor more than ten 
years. [As amended, 1887. 

84. Disorderly conduct] § 84 Whoever is disorderly at any 
election shall forfeit a sum not exceeding $25. 

85. Betting on election. § 85. Whoever bets or wagers any 
money, property or other valuable thing, upon the result of an 
election which may be held under the constitution or laws of this 
state, or bets or wagers money, property, or other valuable thing, 
upon the number of votes which may be given to any person at 
an election, or upon who will receive the greatest number of 
votes at an election; or agrees to pay any other person any 
money, property, or other valuable thing, in the event that an 

(1) It is an indictable misdemeanor to propose to receive a bribe by an alder- 
man of a city council or by any public officer, inciting another to the commission of any indict- 
able offense, though without success, is a misdemeanor. Walsh v. The People, 65 111. R., 58. 



490 , elections. [div. vm. 

election shall result in one way, or in the event that any person 
shall or shall not be elected, or shall receive a greater number of 
votes than others, upon conviction thereof he shall be fined in a 
sum not exceeding $1,000, or imprisoned in the county jail not 
exceeding one year, or both, in the discretion of the court.(l) 
See Rev. Stat., ch. 38, p. 372, § 132. 

86. Offenses of judge of election.] § 86. If any judge of any 
election shall permit a person to vote whose vote is challenged, 
without the proof required in this act ; or, (2) 



(1) The voting of electors of this State, for a president of the United States, Is an 

election held under the laws of this State, and a bet or wager as to the result of such vote, is a 
wager on the result of an election under the statute. McClurken, v. Detrichet a£., 33 111. R., 349. 
See Gordon v. Casey, 23 111. R., 71 ; Stephens v. Sharpe, 26 111. R., 404. 

The election law, concerning betting on elections, is intended to apply to the elec- 
tion of presidential electors, as well as to that of State officers; and bets made on such elections 
are void. Gordon v. Casey, 23 111. R., 70. 

A wager on the result of the .electoral vote for president of the United States, in 
this State, i*> void, as against public policy, by the common law. Allen v. Hearne, 1 Tenn. R., 57. 
Punn v. Biker, 4 Johns. R., 426; Bush v. Keeler, 5 Wend. L., 250 ; Morgan v. Pettit, 3 Scam. R., 531 ; 
<;ord>m\. Casey, 23 111. R., 71 ; Stephens v. Sharpe, 23 111. R., 404; McClurken v. Detrich et al., 33 I1L 
IL.850. 

A bet or wager on the result of an election in this State, whether made before 
or after the election, would be illegal, as against good policy. Morgan v. Pettit, 3 Scam. R., 531, 

A wager as to the result of a presidential election, in another State, made 
after the vote has been cast, is not against public policy. Smith v. Smith, 21 I1L R., 244. 

The law prohibiting betting on elections applies only to elections in this State, 
and does not extend to those made concerning elections to be held in other States ; therefore, a 
bet or wager between two citizens of this State, upon the majority which General Harrison 
would obtain at the presidential election in the State of Kentucky, is not illegal ; and an action 
can be maintained by the winner to recover the amount of the wager. Morgan v. Pettit, 3 Scam. 
R., 531. 

Where B. and L. purchased a piece of cloth at a store on credit, and at the time of the purchase 
a memorandum was made as follows: " If Mr. Douglas is elected to Congress. Brown is to pay 
for the cloth; if Mr. Stewart is elected, James Lurton has it to pay; " Held, that the contract was 
in severalty. Held, also, that the contract for the sale of the cloth was valid ; and was not tainted 
by the bet of B. and L. Lurton v. Gilliam et al., 1 Scam. R., 579. 

At common law all wagers are recoverable, but such as are prohibited by 
itatute; such as are against sound policy; and such as tend to a breach of the peace, to immo- 
rality, or indecency, or injuriously affect the rights of third persons. Morgan v. Pettit, 3 Scam. 
R.,530. 

A stakeholder, unless some other mode has been provided, is the proper person to decide who 
has won a wager. Smithy. Smith, 21 111. R., 244. The court concurs with the case of Ethron v. 
Kingsman, 4 Eng. Com. Law, R., 625. 

A note for money, payable if " Abraham Lincoln receives the electoral vote of the State of Illi- 
nois," is a bet on election, and void on its face. Gordon v. Casey, 23 111. R., 71 ; Guyman v. Bur- 
Hngame, 36 111. R., 201. 

It seems a court of equity will not decree the specific performance of a contract, the considera- 
tion of which is a wager upon an election held under the law of this State. McClurken v. Detrich 
et al., 33 111. R. f 349. 

(2) It is only when the judge of election allows the exercise of the elective fran- 
chise by one whose right he suspects, or whose vote is challenged, without tendering the re- 
quired oath, that the judge violates the law. , Spraigins v. Houghton, 2 Scam. R., 377. 

An election officer is not criminally liable for a mere mistake of judgment, 

but only for a willful disregard of duty ; when indicted for rejecting a vote, the presumptions 
are in his favor. Commonwealth v. Lee, 1 Brewster (Penn.). 273. 

An action on the case will not lie against the inspectors of election for refusing the vote of a 
qualified elector, unless on proof of malice, express or implied. Jenkins v. Waldron, 11 Johns. N. 
Y. R, 114. 

Election officers are generally punishable by indictment, for knowingly receiv- 
ing the vote of one who is not a duly qualified elector. State v. Poll, 7 West, L. J., 138. State v. 
McDonald, 4 Harrington, 555. 

Fraud, when imputed to the acts of inspectors of election, implies an illegal and 
wrongful act, purposely committed. People v. Cook, 8 N. Y. R., 67. 



t»lV. Tin.] OFFENSES AND PENALTIES. 491 



2d. Shall knowingly and willfully permit a person to testify as 
a witness contrary to the provisions of this act ; or, 

3d. Shall knowingly permit a person to vote who is not qualified 
according to law ; or, 

4th. Shall knowingly receive and count more than one vote from 
tke same person at the same election for the same office, except as 
allowed by law ; or, 

5th. Shall refuse to receive the vote of a qualified elector at 
such election, who will make the affidavit and proof required by 
this act ; or, 

6th. Shall be guilty of any fraud, corruption, partiality or man- 
ifest misbehavior ; or, 

7th. Shall open or unfold any ballot when the same is presented 
to be deposited in the ballot box ; or, 

8th. Shall willfully neglect to perform any of the duties required 
of him by this act, shall, on conviction thereof, be fined in a sum 
not exceeding $1,000, or imprisoned in the county jail not exceed- 
ing one year, or both, in the discretion of the court. 

87. When judge or clerk ascertains or discloses vote.] § 87. 

If any judge or clerk of election shall willfully or corruptly ascer- 
tain, by comparison of the poll book with the ballot, or shall allow 
any other person to ascertain by such comparison or otherwise, or 
shall willfully publish or reveal how any elector voted at an elec- 
tion, he shall, on conviction thereof, be fined in any sum not ex- 
ceeding $1,000, or imprisoned in the county jail not exceeding one 
year, or both, in the discretion of the court. 

88. When other person ascertains or discloses vote.] § 88. If 

any person shall willfully or corruptly ascertain or publish, or re- 
veal how any elector voted at an election, he shall, on conviction 
thereof, be fined in any sum not exceeding $1,000, or imprisoned 
in the county jail not exceeding one year, or both, in the discre- 
tion of the court. 

89. Neglect of duty by clerk.] § 89. If any clerk of an elec- 
tion shall willfully neglect to perform any duty required of him as 
sierk of election, or shall be guilty of fraud, corruption or mis- 
behavior as such clerk, he shall, on conviction, he lined in a sum 
not exceeding $500, or imprisoned in the county jail not exceeding 
six months, or both, in the discretion of the court. 

90. Failure to deliver poll books, etc.] § 90. If any judge, 
clerk or messenger, after having been deputed by the judges of 
election to carry the poll books, tally list and votes of such elec- 
tion to the place where, by law, they are required to be canvassed, 
willfully or negligently fails to deliver such poll books, tally list or 
ballots, within the time prescribed by law, with the seal unbroken, 



492 



ELECTIONS. 



[div. vul 



he shall, upon conviction, be fined in a sum not exceeding $500, or 
imprisoned in the county jail not exceeding six months, or both, 
in the discretion of the court. 

91. Neglect by county clerk.] § 91. If the county clerk will- 
fully neglects or refuses to perform any duty required of him by 
this act, he shall, upon conviction, be fined in a sum not exceed- 
ing $500, and shall be liable to the person injured by reason of such 
neglect or refusal, in an amount not exceeding $500, to be recovered 
in an action on the case. 

92. Fraud in canvassing, etc.] § 92. If any county clerk or 
justice of the peace shall be guilty of any fraud, corruption or 
misbehavior, in canvassing the votes or making any abstract of 
votes, or issuing any certificate of election, he shall, on convic- 
tion, be fined in any sum not exceeding $500, or imprisoned in 
the county jail not exceeding one year, or both, in the discretion 
of the court. 

93. Carrying away, defacing, etc., poll books, etc.] § 93. Who- 
ever shall willfully and wrongfully take or carry away from the 
place where it has been deposited for safe-keeping, or deface* 
mutilate or change any poll book, ballot or tally list, or any name 
or figure therein, shall, on conviction, be fined in a sum not ex- 
ceeding $1,000, or imprisoned in the county jail not exceeding 
one year, or both, in the discretion of the court 

93$. Willful neglect of duty— Penalty.] § 93J. If any supervisor, county^ 
commissioner or member of cmy GOl2S0v Jooei'd shall willfully refuse, neglect 
or fail to do any act or perform any {$$$ -cquired of him by the election 
laws of this state, he shall he deemGf- guilty o2 c misdemeanor, and upon con 
viction, fined not exceeding Ci'so lniiiurc<2 Collars, or imprisoned in the 
county jail not exceeding six months, or both in the discretion of the court. 

CONTESTING ELECTIONS. 
Section. 

94. When legislature to hear. 

95. Senators and representatives. 

96. By supreme court. 

97. By circuit courts. 

98. By county court. 

99. Election of state officers — Petition of contestant 

100. Joint committee to take testimony. 

101. Powers of joint committee. 

102. Notice. 

103. Testimony. 

104. Report of committee — Hearing — Decision. 

105. Who may contest senator or representative. 

106. Notice of contest. 

107. Testimony— How taken. 

108. Power of officer taking testimony. 

109. Depositions, etc., to be sent to secretary of state. 

110. Notice and depositions delivered, etc. — Duty of presiding officer* 

111. Rights of either house saved. 

112. Who may contest election of other officers. 

113. Contestant to file statement, etc. 

114. Summons. 



DIV. VHI.] CONTESTING ELECTIONS. 493 



115. Evidence. 

116. Trial. 

117. Other election contested. 

118. When electors may defend for county. 

119. Judgment. 

120. Tie. 

121. Certified copy of judgment— Effect of. 

122. When election adjudged void. 

123. Appeals. 

94. When legislature to hear.] § 94. The legislature, in joint 
meeting, shall hear and determine cases of contested elections of 
governor and lieutenant-governor, secretary of state, auditor of 
public accounts, treasurer, superintendent of public instruction, 
and attorney general. The meeting of the two houses, to decide 
upon such elections, shall be held in the hall of the house of 
representatives, and the speaker of the house shall preside. [See 
Const., art. 5, § 4. 

95. Senators and representatives.] § 95. The senate and 
house of representatives shall severally hear and determine con- 
tests of the election of their respective members. [See Const., 
art 4, § 9. « 

96. By supreme court] § 96. The supreme court shall hear 
and determine contests of the election of judges of the supreme 
court, clerks of the supreme court, judges of the circuit court, 
judges of the superior court of Cook county, members of the 
state board of equalization; but no judge of the supreme court 
shall sit upon the hearing of any case in which he is a party. 

97. By circuit courts, also the superior court.] I 97. The 

circuit courts in the respective counties, and in Cook county the superior 
court also may have and determine contests of the election of judges of 
the county court, mayors of cities, presidents of county boards, presi- 
dents of villages, in reference to the removal of county seats and in refer- 
ence to any other subject which may be submitted to the vote of the peo- 
ple of the county, and concurrent jurisdiction with the county court in 
all cases mentioned in section ninety-eight. [As amended June 17, 1895.] 

98. By county court] § 98. The county court shall hear and 
determine contests of election of all other county, township and 
precinct officers, and all other officers for the contesting of whosf 
election no provision is made.(l) 

99. Election of state officers — petition of contestant.] § 99. 
When any elector shall desire to contest the election of gov- 
ernor, lieutenant-governor, secretary of state, auditor of public 
accounts, treasurer, superintendent of public instruction, or at- 
torney-general, he shall, within ten days after the result of the 



494 elections. [div. vm. 

election shall have been determined, present a petition to the 
general assembly, setting forth the points on which he will con- 
test such election, and praying for leave to produce his proof. 

100. Joint committee to take testimony.] § 100. The general 
assembly shall appoint a joint committee to take the testimony 
on the part of the petitioner, and the person whose place is con- 
tested. 

101. Powers of joint committee.] § 101. The committee so 
appointed- shall have power to send for witnesses, and compel 
the attendance of witnesses and the production of papers, issue 
commissions under the hand of its chairman, to any officer au- 
thorized to take depositions in other cases, to take the deposition 
of witnesses upon the points set forth in the petition, at such 
time and place as the commission shall direct. 

102. Notice.] § 102. Reasonable notice shall be given by the 
party in whose favor the deposition is to be taken, to the oppo- 
site party, of the time and place of taking the same. 

103. Testimony.] § 103. No testimony shall be taken except 
wpon the points set forth in the petition. 

104. Report of committee— Hearing— Decision.] § 104. The 
committee shall report the facts to the house, and a day shall be 
fixed by a joint resolution for the meeting of the two houses to 
decide upon the same, in which decision the yeas and nays shall 
be taken and entered upon the journal. 

105. Who may contest senator or representative.] §105. The 
election of any member declared duly elected to a seat in the sen- 
ate or house of representatives of the general assembly, may be 
contested by any qualified voter of the county or district to be 
represented by such senator or representative. 

106. Notice of contest.] §106. The contestant shall, within 
thirty days after the result of the election shall have been deter- 
mined, serve on the person whose election he will contest, a no- 
tice of his intention to contest such election, expressing the points 
on which the same will be contested ; and shall, also, on or be- 
fore the next session of the general assembly, deliver a copy, of 
such notice to the secretary of state. In case the person whose 
election is contested is absent, or cannot be found, service may 
be had by leaving a copy of such notice athis usual place of 
residence.(l) 

(1) The object of requiring the " points " of contest to be stated, Is for the pur- 
pose of informing the adverse party of the grounds of contest, so that he may prepare to meet 
them Each party is therefore required, when he becomes the actor, to give notice of the spe- 
cific grounds on which he intends to contest the election, or the correctness of the returns or 
icanvass. Taylor v. Taylor et al., 10 Minn. R., 107. 

A court of chancery lias no jurisdiction to enquire into the validity of eleo- 



DIY. VHI.] CONTESTING ELECTIONS. 495- 

107. Testimony— How taken.] § 107. Whenever a notice shall 
have been given of intention to contest an election, as provided 
in the preceding section, either party may proceed to take testi- 
mony of any witness before any judge, justice of the peace, clerk 
of a court, master in chancery, or notary public, on giving to the 
adverse party or his attorney, ten days' notice of the time and 
place of taking the same, and one day in addition thereto (Sun- 
day inclusive) for every fifty miles' travel from the place of resi- 
dence of such party to the place where such deposition is to be 
taken. If the party entitled to notice resides in the county where 
the deposition is to be taken, five day's notice shall be sufficient. 

108. Power of officer taking testimony.] § 108. The officer 
before whom depositions are taken shall have power to compel the 
production of papers, and the attendance of witnesses ; and the 
same proceedings may be had to compel the attendance of wit- 
nesses, as are provided in the cases of taking depositions to be 
used in courts of law and equity. 

109. Deposition, etc., to be sent to secretary of state.] § 109. 
A copy of the notice to take depositions, with proof of the ser- 
vice thereof, with the deposition, shall be sealed up and trans- 
mitted by mail, or otherwise, to the secretary of state, with an 
indorsement thereon, showing the names of the contesting par- 
ties, the office contested, and the nature of the papers. 

110. Deliverey of notice of contest, etc. — Duty of presiding 
officer.] § 110. The secretary of state shall deliver the copy of 

tions. Nor will such Jurisdiction be conferred by the mere omission of the particular case 
from the operation of the general law on the subject of contested elections. Moore v. Hoisington, 
et aL, 31 111. R., 243. 
The person whi holds a certificate from the authorities appointed by law to 

canvass the votes, declaring him elected to an office, and who has complied with the require- 
ments of law in relation to the office, is entitled to the present possession thereof, notwithstand- 
ing the prior incumbent contests his election, denying its legality. Such contest is not an 
appeal, but is an original proceeding under our statutes, going behind the poll books, and purging 
the election. The People ex rel. Cummings v, Head, 25 111., 325. 

It is competent for the court and jury to go behind the certificate of the can- 
vassers, for the purpose of determining who was legally elected to a contested office. Carpenter 
v. Ely, 4 Wis. R., 420. 

On the trial of a contested election, the members returned as elected, though sworn in, are not 
competent to vote on the question of the validity of their own election. Commonwealth v. 
McCloskey, 2 Rawle (Penn.), 369. 

A petition complaining of an undue election and return, must set forth the facts with preci- 
sion; and they must be sufficient, if sustained by proof, to render it the duty of the court, either 
to vacate the election, or to declare that another person than the one returned was duly elected. 
Unless the petition be thus specific, and set forth facts that, if true, would have changed the 
result, it will be quashed, on motion. Mere irregularities on the part of the election officers, 
will not vitiate the poll. Skerrett's Case, 2 Parsons (Penn. t ) 509 ; see also 8 N. Y. R., 67. 

The question whether a voter was or was not duly qualified, is not concluded by the decision 
of the inspectors ; it is open to examination, in subsequent proceedings, upon any competent 
evidence. People v. Pease, 27 N. Y. R., 45. 

The title to an office confers upon the person elected a right to the fees and emoluments 
thereof from the commencement of his legal term. An action for money had and received will 
lie by the officer dejure, against one who has intruded into the office, by color of a certificate of 
•lection, to cover the fees received during the time of such intrusion If the incumbent received' 
his commission bona fide, he will be allowed, in such action, his reasonable expenses in execut- 
ing the duties of the office; otherwise, if his intrusion were without pretense of legal right. 
Mayfield v. JJoore, 53 111. R., 428. 



496 ELECTIONS. [DIV. VIIL 

the notice deposited with him by the contestant, and the deposi- 
tions, unopened, to the presiding officer of the branch of the gen- 
eral assembly to which the contest relates, on or before the sec- 
ond day of its session next after the receipt of the same ; and 
the presiding officer shall immediately give notice to his house 
that such papers are in his possession. 

111. Rights of either house saved.] § 111. Nothing herein 
contained shall be construed to abridge the right of either branch 
of the general assembly to grant commissions to take depositions, 
or to send for and examine any witnesses it may desire to hear 
on such trial. 

112. Election of other officers.] § 112. The election of any 
person declared elected to any office other than governor, lieuten- 
ant governor, secretary of state, auditor of public accounts, 
treasurer, superintendent of public instruction, attorney general, 
senator or representative, may be contested by any elector of the 
State, judicial division, district, county, town, or precinct in and 
for which the person is declared elected. 

113. Contestant to file statement, etc. § 113. The person de- 
siring to contest such election shall, within thirty days after the 
person whose election is contested is declared elected, file with 
the clerk of the proper court a statement, in writing, setting forth 
the points on which he will contest the election, which statement 
shall be verified by affidavit in the same manner as bills in chan- 
cery may be verified. 

114. Summons.] § 114. Upon the filing of such statement, 
summons shall issue against the person whose office is contested, 
and he may be served with process, or notified to appear, in the 
game manner as is provided in cases in chancery. 

115. Evidence.] § 115. Evidence may be taken in the same 
manner and upon like notice as in cases in chancery. 

116. Trial.] \ 116. The case shall be tried in like manner as 
cases in chancery, and may be heard and determined by the court in 
term time, or by the judge in vacation, at any time not less than ten (10) 
days after service of process, or at any time after the defendant is re- 
quired by notification to appear, and shall have preference in the order 
of hearing to all other cases. The court in term time or the judge in 
vacation may make and enforce all necessary orders for the preservation 
and production of the ballots, poll books, tally papers, returns, registers 
and other papers or evidence that may bear upon the contest. [As 
amended June 17, 1895.] 

117. Other elections contested.] § 117. Any five electors of 
the county may contest an election upon any subject which may 
by law be submitted to a vote of the people of the county, upon 



DIY. VIII.] CONTESTING ELECTIONS. 497 

filing in the circuit court, within thirty days after the result of the 
election shall have been determined, a written statement in like 
form as in other cases of contested elections in the circuit court. 
The county shall be made defendant, and process shall be served 
as in suits against the county ; and like proceedings shall be had 
as in other cases of contested elections before such court. 

118. When elector may defend for county.] § 118. In case 
the county board shall fail or refuse properly to defend such con- 
test, the court shall allow any one or more electors of the county to 
appear and defend, in which case the electors so defending shall be 
liable for the costs in case the judgment of the court shall be in 
favor of the contestant. 

119. Judgment] § 119. The judgment of the court, in cases 
of contested election, shall confirm or annul the election accord- 
ing to the right of the matter ; or, in case the contest is in relation 
to the election of some person to an office, shall declare as elected 
the person who shall appear to be duly elected. 

120. Tie.] § 120. If it appears that two or more persons 
have, or would have had if the legal ballots cast or intended to be 
cast for them had been counted, the highest and an equal number of 
votes for the same office, the persons receiving such votes shall 
decide by lot, in such manner as the court shall direct, which of 
them shall be declared duly elected; and the judgment shall be 
entered accordingly. 

121. Certified copy of judgment] § 121. A certified copy of 
the judgment of the court shall have the same effect as to the 
result of the election as if it had been so declared by the can- 
vassers. 

122. When election adjudged void.] § 122. When the person 
whose election is contested is found to have received the highest 
number of legal votes, but the election is declared null by reason of 
legal disqualification on his part, or for other causes, the person 
receiving the next highest number of votes shall not be declared 
elected, but the election shall be declared void.(l) 

123. Appeal.] § 123. In all cases of contested elections in the 
circuit courts or county courts, appeals may be taken to the su- 
preme court in the same manner, and upon like conditions as is 
provided by law for taking appeals in cases in chancery from the 
circuit courts. 



(1) If the person receiving the highest number of votes Is not qualified to take 
the office, the candidate having the next highest number is not legally elected. Cooley on Const. 
Llmitationa. 62Q. Opinion Att v y Gen. Edsall, April 4, 1878. 



498 ELECTIONS. [diy. Yin. 



BESIGNATIONS AND VACANCIES. 
Section. 

124. Resignation of elective officers. 

125. When office becomes vacant. 

126. Who may determine whether vacancy exists. 

127. Vacancy in office of governor or lieutenant governor. 

128. Vacancy in other state offices. 

129. Vacancy in office of senator or representative. 

130. Vacancy in office of representative in congress. 

131. Vacancy in office of judge. 

132. Vacancy in office of clerk of court. 

133. Vacancy in office of county and precinct officers. 

134. To what elections this act may apply. 

124. Of elective officers.] § 124. Eesignations of elective offi- 
ces shall be made to the officer, court or county board authorized 
by law to fill a vacancy in such office by appointment, or to order 
an election to fill such vacancy. 

125. When office becomes vacant] § 125. Every elective 
office shall become vacant on the happening of either of the fol- 
lowing events, before the expiration of the term of such office : 

First — The death of the incumbent 

Second — His resignation. 

Third — His becoming insane. 

Fourth — His ceasing to be an inhabitant of the state ; or, if the 
office is local, his ceasing to be an inhabitant of the district, 
county, town or precinct for which he was elected. 

Fifth — His conviction of an infamous crime, or of any offense 
involving a violation of official oath.(l) 

Sixth — His removal from office. 

Seventh — His refusal or neglect to take his oath of office, or to 
give or renew his official bond, or to deposit or rile such oath or 
bond within the time prescribed by law. 

Eighth — The decision of a competent tribunal declaring his elec- 
tion void. 

126. Who may determine whether vacancy exists.] § 126. 
Whenever it is alleged that a vacancy in any office exists, the offi- 
cer, court, or county board whose duty it is to fill the vacancy by 
appointment, or to order an election to fill such vacancy, shall 
have power to determine whether or not the facts occasioning such 
vacancy exist. (2) 

(1) The trial and conviction of an officer of the offense of bribing a voter previ- 
ously to his election to the office, does not constitutionally disqualify him from exercising the 
duties thereof; it is not a "conviction of misbehavior in office or of any infamous crime," within 
the meaning of the Constitution. Commonwealth v. Shaver, 3 Watts & Sergeant, (Penn. R.,) 338. 

(2) Where a town officer has been declared elected by the election board, and 

aualifies by taking the necessary oath of office, the board of appointment has no power to fill 
le office by appointment, as in case of a vacancy, nor has it authority to hear evidence and do- 
cide that the election was irregularly conducted, or that the election was fraudulent, and thu» 
declare a vacancy. People ex rel. v. Callaghan, 83 ILL R., 128. 



DIV. Vm.] RESIGNATIONS AND VACANCIES. 499 

127. Governor and lieutenant governor vacant.] § 127. In 

case of vacancies in the office of governor and lieutenant-governor, 
the officer performing the duties of the office of governor, or if 
there is no such officer, the secretary of state, shall issue a proc- 
lamation appointing a clay for a special election to fill such vacan- 
cies, and shall issue a writ of election to the county clerks of the 
several counties in the state, and shall also, when necessary, call 
a special session of the general assembly to canvass the votes cast 
at such election : but if such vacancy shall occur not more than 
ninety days before a general election for members of the legisla- 
ture, the vacancies shall be filled at such general election, in which 
case no special session of the general assembly to canvass the 
votes shall be deemed necessary. 

128. Other state officers.] § 128. When a vacancy shall occu) 
in the office of secretary of state, auditor of public accounts 
treasurer, attorney-general, superintendent of public instruction 
or member of the state board of equalization, the governor shaJ' 
fill the same by appointment, and the appointee shall hold hir 
office during the remainder of the term, and until his successor v f 
elected and qualified. [See Const., art. 5, § 20. 

129. Senator or representative.] § 129. When a vacancy 
shall occur in the office of senator or representative in the gener^ 
assembly, it shall be the duty of the county clerk of the county it* 
which the member whose office is vacant resided, to notify the gov 
ernor of such vacancy. Whereupon the governor shall ■ issue r 
writ of election to the county clerk or clerks of the county o' 
counties in which the vacancy is co be filled, fixing a day upon 
which an election shall be held to fill such vacancy ; but unless tht< 
general assembly shall be in session at the time the vacacy occurs 
or there shall be a session between the time at which the vacancy 
occurs and the next succeeding general election, no special electior 
shall be ordered to fill such vacancy. 

130. Representatives in congress.] § 130. When any vacancy 
shall occur in the office of representative in congress from this 
state, the governor shall issue a writ of election to the county 
clerks of the several counties in the district where the vacancy 
exists, appointing a day to hold a special election to fill such 
vacancy. 

131. Judges.] § 131. When a vacancy shall occur in the office 
of judge of the supreme court, judge of the circuit court, judge of the 
superior court of Cook county, or judge of the county court, the clerk 
of the court in which the vacancy exists shall notify the governor of 
such vacancy. If such vacancy shall occur within one year before 
the expiration of the term of the office made vacant, the governor 
shall fill such vacancy by appointment ; but if the unexpired term 



500 ELECTIONS. [DIV. VIIL 



exceeds one year, the governor shall issue a writ of election, as in 
other cases of vacancies to be filled by election. , 

132. CJerks of courts.] §132. When a vacancy shall occur 
in the office of clerk of the supreme court, or in the office 
of the olerk of the superior court, or clerk of the circuit 
court oif any of the counties in this state, and the unexpired 
term of. such clerk shall exceed one year, it shall be the duty of 
the court, or if in vacation, of the judge or judges of the court 
in which such vacancy may occur, to appoint a clerk pro tempore; 
and such appointee shall qualify in the same manner, and give 
bond as required by law of the clerk of the court to which he is 
appointed, to be approved by the court, or if in vacation by the 
^ictgo or judges making the appointment; and thereupon such 
appointee shall be authorized to perform all duties and receive 
all emoluments allowed by law to the duly elected clerk of such 
court, and shall hold such office until an election can be held to 
fill tbe same, as provided by the act to which this is an amend- 
ment, and until the person so elected shall have qualified accord- 
ing ho law. Whenever an appointment shall be made, as pro- 
vided by this act, it shall be the duty of the court or the judge 
or judges making such appointment, to notify the governor forth- 
with of the vacancy filled by such appointment ; and upon re- 
ceiving such notice, it shall be the duty of the governor, as soon 
t her eafter as may be practicable, to issue a writ of election as in 
cthfjr cases of vacancies to be filled by election, in the same 
manner as if no appointment had been made; and when any 
such vacancy shall occur, and the unexpired term does not exceed 
one year, such vacancy shall be filled by appointment by the 
court to which such office appertains, or by the judge or judges 
thereof. [As amended by act approved February 9, 1874; in 
force July 1, 1874. See Kev. Stat., ch. 25, § 11. 

133. County officers, precinct officers, etc.] § 133. When a 
vacancy shall occur in the office of county commissioner, state's 
attorney, sheriff, coroner, county clerk, recorder of deeds, county 
treasurer, county survey or, justice of the peace, constable, or other 
county or precinct officer not otherwise provided for by law, with- 
in one year before the expiration of the term of such vacant office, 
the vacancy shall be filled by appointment, by the county board 
of the county in which the vacancy exists ; but if such unexpired 
term exceeds one year, the county clerk, or, in case of a vacancy 
in his office, the chairman of the county board, shall issue an 
order appointing a day for an election to fill such vacancy, and 
cause notice thereof to be given as in other cases of election. 

1 34. To what elections this act may apply.] § 134. The provi- 
sions of this act shall apply, as far as practicable, to all elections 



DIY. Vni.] REGISTRATION OF ELECTORS. 501 

in the state, whether general, special, local or municipal, except so 
far as they are modified or contravened by other legal enactments. 
[§ 135, repeal, omitted; see Eev. Stat., ch. 131, § 5.] 

REGISTRATION OF ELECTORS. 

Ui ACT for the registry of electors ana to prevent fraudulent voting. [Approved and In forot 
February 15, 1865. L. 1865, p. 54.] 

8ECTIOK. 

135. Board of registration— First meeting— register, 

136. Manner of making register, etc. 

137. New election districts. 

138. Revising register— Second meeting. 

139. Proceedings open — Corrections, etc. 

140. Revising register— Addition of new names. 

141. Copies of register— Filing— Delivery to judges— Voting, etc 

142. Entry on register by clerk — non-registered voter — Penalty. 

143. Poll list and register to be filed. 

144. Registers open to inspection. 

145. Compensation. 

146. Preserving order. 

147. Fraudulent registration— False swearing, etc. 

148. Blanks to be furnished. 

149. Time when act takes effect. 

135. Board of registration— Meeting— Register.] § 1. That 

the persons authorized by law, or appointed pursuant to any town 
or city ordinance, to act as judges or inspectors of elections in any 
town, city, or ward or other election district or precinct in this 
State, shall constitute a 'Board of Registry' for their respective 
towns, cities, wards, districts or precincts, and shall meet on Tues- 
day, three weeks preceding any State election, at nine o'clock A. M., 
and proceed to make a list, as hereinafter prescribed, of all per- 
sons qualified and entitled to vote at the ensuing election in the 
election district of which they are judges or inspectors; which list, 
when completed, shall constitute and be known as the * Register ' 
of electors of said election district. In election districts in towns 
which lie wholly within the limits of an incorporated city, a regis- 
ter of electors shall be made for all elections, whether general, 
special, local or municipal, in the same manner as herein pro- 
vided in the case of State elections.(l) [As amended, 1879. 

136. Manner of making register, etc.— First meeting.] § 2. 
Said registers shall each contain a list of the persons so qualified 
and entitled to vote in said election district, alphabetically arranged, 

(1) Persona whose names are put upon the registry list, but who do not appear 
and rote at an election, are presumed to have left the election district, and therefore no longer 
voters therein. The registry list of voters is no better evidence of the number of legal voters in 
a district or county than the poll list The vote cast is prima facie evidence of not only the result 
of the election, but also of the number of legal voters in the county. The registry lists do not 
rebut or overcome this presumption. People ex rel. v. Oarner, 47 111. R., 247. 

The act of 1865, providing for the registry of electors, and to prevent frauds in elections, does 
not applv to elections held for the purpose of deciding upon the removal of a county seat Boren 
v.^nLhetaL.i- 111. R., 482. 



502 ELECTIONS. [DIT. tUL 

according to their respective surnames, so as to show, in one 
column, the name at full length, and in another column, in cities, 
the residence, by the number of the dwelling, if there be a num- 
ber, and the name of the street or other location of the dwelling 
place of each person. It shall be the duty of said board to enter 
in said lists the names of all persons residing in their election dis- 
trict, whose name appears on the poll list kept in said district at 
the last preceding election — in cities the number of the dwelling 
and the name of the street or other location, if the same shall 
be known to or can be ascertained by such board — and for this pur- 
pose said board are authorized to take from the office in which 
they are filed the poll lists made and filed by the judges or inspec- 
tors of such district, at the election held next prior to the making 
of such register. In making said list, the board shall enter 
thereon, in addition to the names on the poll list, the names of all 
other persons who are well known to them to be electors in said 
district; and the names of all persons on the poll list who have 
died or removed from the district shall be omitted from the regis- 
ter. The said board shall complete, as far as practicable, the said 
register on the day of their meeting, aforesaid, and shall make two 
copies thereof, and certify the register and each of the copies to 
be a true list of the voters in their district, so far as the same are 
known. Within two days thereafter, the said original list, together 
with the list taken from the office, as aforesaid, shall be filed by 
said board in the office of the town clerk of the town in which 
said election district may be ; but in counties not adopting town- 
ship organization, said list shall be filed with the judges or inspec- 
tors of election of the proper district, or if such election district 
is in a city then it shall be filed in the office of the city clerk of 
said city. And one copy of said list shall be kept by one of said 
judges or inspectors, and carefully preserved by him for their use on 
the day or days hereinafter mentioned, for the revision and correc- 
tion of the same. One copy of said list shall, immediately after its 
completion, be posted in some conspicuous place where the last 
preceding election in said district was held, and be accessible to 
any elector who may desire to examine the same or make copies 
thereof. Any person who shall take down, tear down or deface 
any list, so posted, shall be deemed guilty of misdemeanor, and shall 
be punished by a fine of $50, or by imprisonment in the county jail 
for the term of sixty days, or by both fine and imprisonment. [As 
amended by act approved March 27, 1874 ; in force July 1, 1874. 

137. New election districts.] § 3. In case a new election dis- 
trict shall be formed by the organization of a new town, or by the 
division of any town or ward, or the incorporation of a city or 
town, the judges or inspectors of the election in the new district 
thus formed, may make their registry of electors on the day pre- 



DP . Vni.] KEGISTRATTON OF ELECTORS. 503 

sciibed by this act, in such manner as a majority of them may 
diiect, and for that purpose may make a list, or cause to be made a 
certified copy of the poll list or lists of the district in which such new 
district is situated, or they may dispense with such list or lists and 
proceed to make a register of electors, from the best means at 
their command. Said list shall only embrace the names of such 
persons as are known to them to be electors in their district, and 
shall be posted up and copies thereof made, as prescribed in the 
preceding section, and shall be corrected in the same manner that 
other lists are corrected. 

138. Revision register — Second meeting.] § 4. The said board 
shall again meet on Tuesday of the week preceding the said elec- 
tions, in their respective election districts, at the place designated 
for holding the polls of the election, for the purpose of revising, 
correcting and completing said lists ; and for this purpose, in cities, 
they shall meet at eight o'clock in the morning, and remain in 
session until nine o'clock P. M., and in other districts they shall 
meet at nine o'clock in the morning and remain in session until 
four o'clock P. M. [As amended by act approved March 27, 1874 ; 
in force July 1, 1874. 

139. Proceedings open— Corrections, etc] § 5. The proceed- 
ings of said board shall be open, and all persons residing and 
entitled to vote in said district shall be entitled to be heard by 
said board, in relation to corrections or additions to said register. 
One of the lists so kept by the judges or inspectors, as aforesaid, 
shall be used by them, on the day or days of making corrections or 
additions, for the purpose of completing the registry for such district. 

140. Revising register— Addition of new names.] § 6. It shall 
be the duty of said board, at their meeting for revising and cor- 
recting said lists, to erase therefrom the name of any person in- 
serted therein, who shall be proved by the oath of two legal voters 
of said district, to the satisfaction of said board, to be non-resi- 
dent of said district, or otherwise not entitled to vote, in said dis- 
trict, at the election then next to be held. Any elector residing in 
said district, and entitled to vote therein, may appear before said 
board and require his name to be recorded on said alphabetical 
list. Any person so requiring his name to be so entered on said 
lists, shall make the same statement as to the street and number 
thereof, and where he resides, required by the provisions of this 
act of persons offering their votes at elections, and shall be subject 
to the same penalties for refusing to give such information, or for 
falsely giving the same, and shall also be subject to challenge, 
either by the judges or inspectors, or either of them, or by any 
other elector whose name appears on said alphabetical list ; and 
Hie same oaths may be administered by the judges or inspectors 



504 ELECTIONS. [DIY. VIII 

as now provided in case of persons offering to vote at an election 
and in case no challenge is made of any person requiring his name 
•to be entered on said alphabetical list, or in case of challenge, il 
such person shall make oath that would entitle him to vote in case 
of challenge at an election, then the name of any such person shall 
be added to the alphabetical poll list of the last preceding year.(l) 
141. Copies of register— Filing— Deliver to judges— Toting— 
Swearing in vote, etc.] § 7. After said lists shall have been fully 
completed, the said board shall, within three days thereafter, cause 
two copies of the same to be made, each of which shall be certified 
by them to be a correct list of the voters of their district ; one of 
which shall be filed in the office of the town clerk of towns, and 
in the ofiice of city clerks of cities ; and one of which copies shall 
be delivered to said judges or inspectors. It shall be the duty of 
the said judges or inspectors so receiving such list, carefully to 
preserve the said list for their use on election day, and to desig- 
nate two of their number, at the opening of the polls, to check 
the name of every voter voting in such district whose name is on 
the register. No vote shall be received at any state election in 
this state, if the name of the person offering to vote be not on 
the said register made on the Tuesday preceding the election, un- 
less the person offering to vote shall furnish to the judges of the 
election his affidavit, in writing, stating therein that he is an in- 
habitant of said district and entitled to vote therein at such elec- 
tion, and prove by the oath of a householder and registered voter 
of the district in which he offers to vote, that he knows such per- 
son to be an inhabitant of the district, and if in any city, giving 
the residence of such person within said district. The oath may 
be administered by one of the judges or inspectors of the election, 
at the poll where the vote shall be offered, or by any other person 
authorized to administer oaths, but no person shall be authorized 
to receive compensation for administering the oath. Said oath 
shall be preserved and filed in the office of the town or city clerk, 
or in case there be no clerk, then said oath shall be filed with and 
preserved by the judges or inspectors of the proper district. Any 
person may be challenged, and the same oaths shall be put as now 
are or hereafter may be prescribed by law.(2) [As amended by act 
approved March 27, 1874 ; in force July 1, 1874. 

(1) Where a person votes at an election without having been registered, anc 

without any proof of right, if it does not appear he was challenged, or any objection made to his 
voting, the presumption must be that he was a legal voter, and so known to the judges. Dale v 
Irwin, 78 111. R., 171. 

(2) Under this act, a person who has not been registered as a voter must not 
only show by his own affidavit that he is an inhabitant of the district in which he offered hi* 
vote, but he must, in addition, establish such fact by the affidavit of a " householder and regis- 
tered voter" of such district. In such case the fact that the person so offering his vote was well 
known to the judges of the election, who knew that he resided in the district, and had previ- 
ously been in the habit of voting therein, does not dispense with the proof required by the stati- 



DIY. VIII.] REGISTRATION OF VOTERS. 505 

142. Entry on register by clerks— Non-registered to ter— Pen- 
alty.] § 8. The clerks at each poll, in addition to the duties now 
prescribed by law, shall enter on the poll list kept by them, in 
columns prepared for that purpose, opposite the name of each 
person voting, the same statement or minute as hereinbefore re- 
quired of the board in making the registry ; but such entry is not 
to be made by them if the registry contains correctly the name 
and residence of such voter ; and in all cases said clerk shall enter 
in a column opposite the name of each person not registered, the 
words " not registered." In cities, every elector, at the time of 
offering his vote, shall truly state the street in which he resides, 
and if the house, lodging or tenement in which he resides is num- 
bered, the number thereof. And the clerks of the polls, in case 
the name of such elector is not registered, shall truly enter in the 
appropriate column of the poll list, opposite the name of the 
elector, the street in which the elector resides, and the num- 
ber, in case the house, lodging or tenement is numbered; 
and if the same is not numbered, then the clerk shall enter 
"not numbered" in the column of the poll list for entering 
the number. In case of refusal to make the statement as 
aforesaid, the vote of such an elector shall not be received. 
Any person who shall willfully make any false statement in rela- 
tion thereto, shall be deemed guilty of misdemeanor, and shall, 
upon conviction, be punished with a fine of $50, or by imprison- 
ment in the county jail in the county for a period of ten days, or 
by both such fine and imprisonment. 

143. Poll list and register to be filed.] §9. After the can- 
vass of the votes, one of said poll list and said register so kept and 
checked, as aforesaid, shall be attached together, and shall, on the 
following day, be filed iu the town or city clerk's office (as the case 
may be), in which said district may be, or in case there be no such 
clerk, then such poll list and register shall be filed with and pre- 
served by the judges or inspectors, to be used by the board of regis- 
try in making the list of voters at the next state election; the other 
of said poll lists and registers, so kept and checked, shall be returned 
to the office of the county clerk in the county in which said district 
may be, at the same time the returns of the election are made. [As 
amended by act approved March 27, 1874; in force July 1, 1874. 

[§ 10 is repealed by act approved March 27, 1874.] 

144. Registers open to inspection.] § 11. The registers 
shall at all times be open to public inspection, at the office of the 
authorities in which they shall be deposited, without charge. 

145. Compensation.] § 12. That the members of the board 

ute. The requirements of this act, relative to the proof to be made by pers< ns whose names have 
not been registered, are reasonable and within the scope of legislative pow er, and are not calcu- 
late! to abndge the elective franchise. Byler et al, v Asher, 47 m. R., lot 



506 ELECTIONS. [DIY. VIIL 

of registration shall each receive $2 per day for each day actually 
employed in making and completion of the registry, not exceeding 
two days, to be paid to them at the time and in the manner in 
which they are paid their other fees. [As amended by act approved 
March 27J 1874; in force July 1, 1874. 

146. Preserving order.] § 13. The said board shall have and 
exercise the same power in preserving order at their meetings, under 
this act, as are given to judges or inspectors of election for preserv- 
ing order on election days ; and vacancies in said board shall be fill- 
ed in the same manner that vacancies are now rilled at elections.(l) 

147. Fraudulent registration, false swearing, etc.] § 14. 

Any person who shall cause his name to be registered in more than 
one election district, or who shall cause his name to be registered, 
knowing that he is not a qualified voter in the district where said 
registry is made, or who shall falsely personate any registered 
voter, and any person causing, aiding or abetting any person, in 
any manner, in either of said acts, shall be punished, for each and 
every offense, by imprisonment in the state prison t^r not less 
than one year. All intentional false swearing before fiaid board 
of registration shall be deemed willful and corrupt perjury, and, 
on conviction, punished as such. If any member or officer of said 
board shall willfully violate any of the provisions of this act, or be 
guilty of any fraud in the execution of the duties of his office, he 
shall be punished, for each and every offense, by imprisonment in 
the state prison for not less than one year.(2) 

[§ 15 and 16 are repealed by implication, the acts to whAch they 
refer being repealed. § 17 was only of temporary effect.] 

148. Blanks to be furnished.] § 18. The necessary blanks 
for making the registers required by law, shall be prepared by the 
secretary of state, and transmitted to the person entitled to receive 
them, in the same manner that blank returns of elections are now 
transmitted. 

[§ 19 is repealed by implication, the act to which it refers being 
repealed.] 

149. Time act takes effect.] § 20. This act shall be m force 
from and after its passage. 

(1) See ante, p. 475 §44. 

ffl) Members of the board of registry are not liable to indictment for ^fusing 
to insert the name of a voter upon the list, if they act honestly ana in the exercise of thoir best 
judgment. State v. Smith, 18 N. Hamp. R., 91. 

And an information against the board of registry for refusing to put a voter's name on V b list, 
should allege that they knew his right to vote. State v. Daniels, 44 N. Hamp. R., 383 ; Lomh <rd v. 
Oliver, 7 Allen (Mass.) R., 155. 

An action will not lie against the judge of an election for refusing the vote 
of a person who was not registered as a voter, and who failed to comply with the require) enta 
of section 7 of the registry act, relative to the proof to be made in such cases. Nor will thi fact 
that such refusal was placed on grounds not tenable change their liability. Byler et at. v. . f *. 
47 111. R., 1Q1, - ■ 



DIV. Till.] 



THE MODE OF ELECTION. 



507 



THE LEGAL VOTING-PAPER ACT. 

[The following act regulating the method of elections in Illinois has been 
popularly called the "Australian law." It is not the Australian law. It is, in a 
broad sense, the antithesis of that law. The Australian law is based on the 
republican-democratic principle that election is the personal function of the 
individual elector. Its guiding motive is to apply this principle in the electing 
process as nearly as practicable. To this end it authorizes any group of elec- 
tors, being not less than a stated number, to nominate candidates by signing a 
nomination paper and tiling it, together with the written acceptance of each 
nominee and a fixed sum of money for election expenses, with the officer charged 
with the duty of preparing the voting-paper. On this legally guarded voting- 
paper are printed the names of all the candidates to be voted for. The names 
are not arranged in party groups, or tickets, but in alfabetical order in one 
continous list. No name of any person can appear on the voting-paper more 
than once as a candidate for the same office. Every voter is required to make 
his election by putting his vote-mark to the name of every candidate for whom 
he intends to vote. The Australian law permits no other mode of voting. It 
places every candidate before the electorate on his own merits, and requires 
every voter to make his personal election among the whole number of candi- 
dates so presented. 

The Illinois act, on the contrary, proceeds on the tacit assumption that elec- 
tion is the proper function of an organized body of party managers, aptly called 
"the machine." While it authorizes the nomination of candidates by inorganic 
groups of electors, it also provides for their nomination by party caucuses, and 
imperatively requires that the names of all candidates be arranged on the 
voting-paper in distinct party "tickets," with a provision for election among 
the candidates by tickets, instead of by individuals. Thus the Illinois act, in its 
prescription of the mode of election, puts itself in opposition to the reputlican- 
democratic principle.] 



THE MODE OF ELECTIONS. 



Section. 

1. Ballots printed at public expense. 

2. Expense to be borne by cities, etc. 

3. Nomination of candidates. 

4. Caucus nominations — certificate. 

5. Nomination papers — signatures. 
fi. Nomination papers — requisites. 
7. Certificates to be filed. 
K Withdrawal of nominations. 
9. Death or declination of candidate 

vacancy. 

10. Certificates of nomination — objections. 

11. Nomination to fill vacancy. 

12. Pasters — stamping on ballots. 

13. Notice to county clerk. 

11. Ballot — what to contain — how printed — 
form. 

15. Printing of ballots— by what officers. 

16. Vote on constitutional amendment— form 

of ballot. 

17 Cumulative voting. 

18 Printing instructions for voters. 

19. Instruction cards and specimen ballots to 

be posted. 

20. Judges have charge of ballots. 



Section. 
21. 

22. 

23. 
24. 
25. 

26. 

27. 

28. 

29. 

30. 
31. 



32. 
33. 
34. 



Booths at polling places, stationary, 
etc. — booths private. 

Manner of voting— checking on regis- 
ter list. 

Manner of preparing ballot. 

Assistance to illiterate voter. 

Absence for voting purpose — em- 
ployer preventing — penalty. 

Ballots not counted— spoiled ballots. 

Canvass of votes — proclamation — bal- 
lots destroyed. 

Electioneering at polls prohibited — 
penalty. 

Unlawful exhibition of ballot— false 
statement —penalty. 

Destroying posted lists, etc. — penalty. 

Destroying, etc., certificate of nomi- 
nation — spurious ballot, etc. — 
penalty. 

Neglect of officer to perform duties. 

Published in pamphlet form. 

Time polls to be kept open. 

Repeal of prior acts— effect on penal- 
ties, 



508 TOWNSHIP ORGANIZATION LAWS. • 

AN ACT to provide for the printing and distribution of ballots "at public expense, and for the 
nomination of candidates for public offices, to regulate the manner of holding elections, 
and to enforce the secrecy of the ballot. Approved June 22, 1891. In force July 1, 1891. 

[Ballots printed at public expense.] § 1. Be it enacted, etc. That 
in all elections hereafter to be held in this state for public officers, ex- 
cept for trustees of schools, school directors, members of boards of 
education, officers of road districts in counties not under township organi- 
zation, the voting shall be by ballots printed and distributed at public 
expense as hereinafter provided, and no other ballots shall be used. 

[Expense borne by cities, etc] § 2. The printing and delivery of the 
ballots and cards of instruction to voters hereinafter described shall, in 
municipal elections in cities, villages and incorporated towns be paid 
for by the several cities, villages and incorporated towns respec- 
tively, and in town elections by the town, and in all other elections the 
printing of the ballots and cards of instruction for the voters in each 
county and the delivery of them to the several voting precincts and elec- 
tion districts shall be paid for by the several counties respectively. The 
term "general election," as used in this act, shall apply to any election 
held for the choice of a national, state, judicial, district or county 
officer, whether for the full term or for the filling of a vacancy. The 
term "city election" shall apply to any municipal election held in a 
city, village or incorporated town. 

[Nomination of candidates. § 3. Any convention of delegates, and any caucus 
or meeting of qualified voters, as hereinafter defined, and individual voters to the 
number and in the manner hereinafter specified may nominate candidates for public 
office, whose names shall "be placed upon the ballots to be furnished as hereinafter 
provided: Provided, that the names of candidates shall not be placed upon the 
ballot more than once for the same office, or under more than one party appellation 
or title. [As amended May 6, 1897.] 

[Caucus nominations — certificate.] § 4. Any convention of dele- 
gates, caucus or meeting representing a political party which at the 
general election next preceding polled at least two (2) per cent, of the 
entire vote cast in the state, or in the electoral district or division there- 
of, or the municipality for which the nomination is made, may for the 
state, or for the electoral district or division thereof or municipality 
for which the convention, caucus or meeting is held, as the case may 
be, by causing a certificate of nomination to be duly filed, make one 
such nomination for each office therein to be filled at the election. Every 
such certificate of nomination shall state such facts as are required in 
section six (6) of this act, and shall be signed by the presiding officer 
and by the secretary of the convention, caucus or meeting, who shall 
add to their signatures their places of residence. Such certificates 
shall be sworn to by them to be true to the best of their knowledge and 
belief, and a certificate of the oath shall be annexed to the certificate of 
nomination. 

[Nomination certificates — signatures.] § 5. Nominations of candi- 
dates for any office to be filled by the voters of the state at large may 
also be made by nomination papers, signed in the aggregate for each 
candidate by not less than one thousand (1,000) qualified voters of the 
state, Nominations of candidates for office within any district or political 



THE MODE OF ELECTIONS. 5Q9 



division less than the state, and in all cities having a population in 
excess of 5,000, may be made by nomiDation papers signed in the ag- 
gregate for each candidate by qualified voters of such district or political 
division, not less than one for each fifty persons who voted at the next 
preceding general election in such district or division, but in no case 
by less than twenty-five (25). In elections to be held in a town, village 
precinct or ward, and in all cities with a population not exceeding 
5,000, the signature of voters thereof equaling five per cent of the vote 
cast therein at the last preceding election shall be sufficient for the 
nomination of a candidate who is to be voted for only in such town, 
village, precinct or ward or city. Each voter signing the nomination 
paper shall add to his signature his place of residence, and each voter 
may subscribe to one nomination for each office to be filled, and no 
more: Provided, that the name of any candidate whose name may 
appear in any other place upon the ballot, shall not 'be so added by 
petition for the same office. 

[Nomination papers -requisites.] §6. All certificates of nomination or nomi- 
nation papers shall, besides containing the names of candidates, specify as to each- 
1. The office to which he is nominated; 2. The party or political principle which he 
represents, expressed in not more than five (5) words; 3. His place of residence with 
the street and number thereof, if any. In the case of electors for president and vice- 

P ^ S1 ? ent '. ttle nameS ° f the candid ates for president and vice-president maybe 
added to the party or political appellation. 

[Certificates to be filed.] § 7. Certificates of nomination and nomination 
papers for the nomination of candidates for offices to be filled by the electors of the 
entire state, or any division or district greater than a county, shall be filed with the 
Secretary of State at least thirty days previous to the day of election for which the 
candidates are nominated. All other certificates for the nomination of candidates 
shall be filed with the county clerk of the respective counties at least thirty davs 
previous to the day of such election: Provided, that certificates of nomination and 
nomination papers for the nomination of candidates for the offices in cities villages 
and incorporated towns, and for town offices in counties under township organization 
shall be filed with the clerks of the towns, cities, Villages and incorporated towns at 
least fifteen days previous to the day of such election. 

[Withdrawal of nomination.] § 8. Any person whose name has been presented 
as a candidate or who has been nominated by more than one convention caucus or 
meeting of qualified voters, may cause his name to be withdrawn from any such nom- 
ination by his request in writing, signed by him and duly acknowledged before an 
officer qualified to take acknowledgment of deeds, and filed with the Secretary of 
State not less than fifteen (15) days, or with the proper clerk not less than eight (8) 
days previous to the day of election, and no name so withdrawn shall be printed 
upon the ballots under the party appellation or title from which the candidate has 
withdrawn his name. In case the certificate of nomination or petition as provided 
for in this act shall contain or exhibit the name of any candidate for any office upon 
more than one of said certificates or petitions (for the same office), then and in that 
case the Secretary of State or county clerk, as the case may be, shall immediately 
notify said candidate of said fact and that his name appears unlawfully upon more 
than one of said certificates or petitions, and that within five (5) days from the 
receipt of said notification, said candidate must elect as to which of said political 
S y h a f t llat1 ^ />r groups he desires his name to appear and remain under upon 
sfons b he^ to comply with the provi- 

groups. aii certificates of nomination and nomination papers, when filed, shall 



510 TOWNSHIP ORGANIZATION LAWS. 



. 



be open, under the proper regulation, to public inspection, and the 
Secretary of State and the several clerks having charge of nomination 
papers shall preserve the same in their respective offices not less than 
six months. [As amended May 6, 1897.] 

[Death or declination of candidate — vacancy.] § 9. In case a candi- 
date who has been duly nominated under the provisions of section six 
(6) of this act die before election day, or decline the nomination, as in 
this act provided, or should any certificate of nomination be held in- 
sufficient or inoperative by the officer with whom they may be filed, the 
vacancy or vacancies thus occasioned may be filled by the political 
party or other persons making the original nominations, or, if the time 
is insufficient therefor, then the vacany may be filled, if the nomination 
was by convention or caucus, in such manner as the convention or 
caucus had previously provided, or, in case of no such previous pro- 
vision, then by a regularly elected general or executive committee re- 
presenting the political • party or persons holding such convention, 
meeting or caucus. The certificates of nomination made to supply such * 
vacancy shall state, in addition to the other facts required by section six 
(6) of this act, the name of the original nominee, the date of his death 
or declination of nomination, or the fact that the former nomination has 
been held insufficient or inoperative, and the measures taken in accord- 
ance with the above requirements for filling a vacancy, and it shall be 
signed and sworn to by the presiding officer and secretary of the con- 
vention or caucus, or by the chairman and secretary of the duly 
authorized committee, as the case may be. 

[Certificates of nomination — oejections.] § 10. The certificates 
of nomination and nomination papers being so filed, and being in appa- 
rent conformity with the provisions of this act, shall be deemed to be 
valid, unless objection thereto is duly made in writing. Such objections 
or other questions arising in relation thereto in the case of nomination 
of state officers shall be considered by the Secretary of State and the 
Auditor and Attorney General, and the decision of the majority of these 
officers shall be final. Such objections or questions arising in the case 
of nominations for officers to be elected by the voters of a division less 
than the state and greater than a county, shall be considered by the 
county judges of the counties embraced in such division, and the deci- 
sion of a majority of these officers shall be final. Such objections or 
questions arising in the case of nominations of candidates for county 
offices, shall be considered by the county judge, county clerk, and state's 
attorney for such county, and the decision of a majority of said officers 
shall be final. Objections or questions arising in the case of nominations 
of city, town or village officers shall be considered by the mayor or 
president of the board of trustees, and the city, town or village clerk, 
with whom one alderman or trustee thereof, as the case may be, chosen 
by lot shall act, and the decision of a majority of such officers shall be 
final. Such objections arising in the case of nominations of town officers 
shall be considered by the board of auditors of such town, and the 



THE MODE OF ELECTIONS. 511 

decision of a majority of such auditors shall be final. In any case 
where such objection is made, notice shall forthwith be given to the 
candidates affected thereby, addressed to their places of residence as 
given in the nomination papers and stating the time and place, when and 
where such objections will be considered: Provided, that in cities, 
towns or villages having a board of election commissioners such ques- 
tions shall be considered by such board and its decision shall be final. 

[Nominations to fill vacancy.] § 11. "When such certificate is 
filed with the Secretary of State he shall, in certifying nominations to 
the various county clerks, insert the name of the person who has been 
thus nominated to fill a vacancy in place of the original nominee, and in 
the event that he has already sent forward his certificate, he shall forth- 
with certify to the clerks of the proper counties the name and descrip- 
tion of the person so nominated to fill a vacancy, the office he is nomi- 
nated for, with the other details mentioned in certificates of nomi- 
nations filed with the Secretary of State, and in cases where such clerk 
is not charged by this act with the printing of the ballots, he shall 
immediately certify the name so supplied to the authorities charged 
with the printing of the ballots. The name so supplied for the vacancy 
shall, if the ballots are not already printed, be placed on the ballots in 
place of the name of the original nominee ; or if the ballots have been 
printed, new ballots, whenever practicable, shall be furnished. 

[Pasters — stamping on ballots.] § 12. Whenever it may not be 
practicable to have the new ballots printed, it shall be the duty of the 
election officer having charge of the ballots to place the name supplied 
for the vacancy upon each ballot issued before delivering it to the voter; 
the name so supplied may be placed upon the ballots either by affixing 
a paster or by writing or stamping the name on the ballot; and to enable 
this to be done, the officer with whom the certificates of nomination are 
to be filed shall immediately furnish the name of such substituted nomi- 
nee to all judges of election within the territory in which such nominee 
may be a candidate. 

[Notice to county clerk.] § 13. Not less than fifteen days before 
an election to fill any public office the Secretary of State shall certify to 
the county clerk of each county within which any of the electors may 
by law vote for candidates for such office, the name and description of 
each person nominated for such office, as specified in the certificates of 
nomination filed with the Secretary of State. 

[Ballot — what to contain — how printed — form.] § 14. The names 
of all candidates to be voted for in each election district or precinct shall 
be printed on one ballot; all nominations of any political party or group 
of petitioners being placed under the party appellation or title of such 
party or group as designated by them in their certificates of nomination 
or petitions, or if none be designated, then under some suitable title, and 
the ballot shall contain no other names, except, that in case of electors 
for president and vice-president of the United States, the names of the 
candidates for president and vice-president may be added to the party 



512 



TOWNSEIP ORGANIZATION LAWS. 



or political designation. If a constitutional amendment or other public 
measure is submitted to a vote, such question shall be printed upon the 
ballot after the list of candidates, and words calculated to aid the voter 
in his choice of candidates or to answer any question submitted to vote 
may be added, such as : " Vote for one;" " Vote for three," " Yes," "No," 
or the like. On the back or outside of the ballot, so as to appear when 
folded, shall be printed the words, " Official ballot," followed by the 
designation of the polling place for which the ballot is prepared, the 
date of the election and a fac simile of the signature of the clerk or 
other officer who has caused the ballots to be printed. The ballots shall 
be of plain white paper, through which the printing or writing can not 
be read. The party appellation or title shall be printed in capital let- 
ters, not less than one-fourth of an inch in height and a circle one-half 
inch in diameter shall be printed at the beginning of the line in which 
such appellation or title is printed. The names of candidates shall be 
printed in capital letters not less than one-eighth nor more than one-fourth 
of an inch in height, and at the beginning of each line in which a name 
of a candidate is printed a square shall be printed, the sides of which 
shall not be less than one-fourth of an inch in length. The list of 
candidates of the several parties and groups of petitioners shall be 
placed in separate columns on the ballot in such order as the authorities 
charged with the printing of the ballots shall decide. 

As nearly as practicable the ballot shall be in the following form: 



O DEMOCRATIC. 



O REPUBLICAN. 



O PROHIBITION. 



For Governor 
JOHN M. PALMER. 



For Governor 
JOSEPH W. FIFER. 



For Lieutenant Governor For Lieutenant Governor 
I I ANDREW J. BELL. 



LYMAN B. RAY. 



For Governor 
DAVID H. HARTS. 



For Lieutenant Governor 
~| JOS. L. WHITLOCK. 



For Secretary of State For Secretary of State For Secretary of State 



NEWELL D. RICKS. 



I. N. PEARSON. 



JAMES R. HANNA. 



[And continuing in like manner as to all candidates to be voted for 
at such election.] 

[Printing of ballots — by what officers.] § 15. For all elections 
to which this act applies, the county clerks, in their respective counties, 
shall have charge of the printing of the ballots for all general elections, 
and shall furnish them to the judges of election; the city, town or vil- 
lage clerk shall have charge thereof and furnish them in all city 
elections, and the town clerk in counties under township organization 
shall have charge thereof and furnish the same in all town elections to 
which this act applies: Provided, that in cities, towns or villages 
having a board of election commissioners, such board shall have charge 
of the printing of the ballots and furnish them to the judges of election 



THE MODE OF ELECTIONS. 513 

within the territory under their jurisdiction. Ballots shall be printed and 
in possession of the officer charged with their distribution at least two 
days before the election and subject to the inspection of candidates and 
their agents; if any mistakes be discovered they shall be corrected 
without delay. The officer so charged with the printing of the ballots 
shall cause to be delivered to the judges of election at the polling place 
of each precinct or district, not less than twelve hours before the time 
fixed by law for the opening of the polls therein, one hundred ballots 
of the kind to be voted in such precinct or district for every fifty votes 
cast therein at the last preceding election for state officers; such ballots 
shall be put up in separate sealed packages, with marks on the outside 
clearly designating the polling place for which they are intended and 
the number of ballots enclosed, and receipt therefor shall be given by 
the judges of election to whom they are delivered, which receipt shall 
be preserved by the officer charged with the printing of the ballots. The 
officer or authorities charged with the printing and distributing of the 
ballots shall provide and retain at his or their office an ample supply of 
ballots, in addition to those distributed to the several voting precincts 
or districts, and if at any time on or before the day of election the bal- 
lots furnished to any precinct shall be lost, destroyed or exhausted before 
the polls are closed, on written application signed by a majority of the 
judges of such precinct or district, or signed and sworn to by one of such 
judges, he shall immediately cause to be delivered to such judges, at the 
polling place, such additional supply of ballots as may be required and 
sufficient to comply with the provisions of this act. 

[Vote on constitution ax amendments — form of ballot.] § 16. "When- 
ever a constitutional amendment or other public measure is proposed to 
be voted upon by the people, the substance of such amendment or other 
public measure shall be clearly indicated upon the ballot, and two 
spaces shall be left upon the margin, one for votes favoring the amend- 
ment or public measure, to be designated by the word "yes," and one 
for votes opposing the amendment or measure, to be designated by the 
word "no," as in the form herein given: 



Proposed amendment to the Constitution giving judges 
a life term of office and making them appointive. 



NO. 



YES. 



The elector shall designate his vote by a cross mark, thus (x). 

[Cumulative voting.] § 17. It may be stated in the certificates of 
nomination of candidates for representatives in the general assembly 
what number of votes it is desired shall be printed as given to such 
candidate or candidates, and in such case the ballots shall be so printed. 
In any case where the certificate of nomination does not so state, then 
no number of votes shall be printed on the ballots as to the candidate 
or candidates named in such certificates. In canvassing the vote for 
representatives in the general assembly, if the ballot has been so marked 
as to indicate that the voter intends to vote for one person only for that 
office, it shall be counted three votes for that candidate; if it has been 



514 TOWNSHIP ORGANIZATION LAWS. 

so marked as to indicate that the voter intends to vote for two persons 
for representatives it shall be counted one and one- half votes for each 
of such candidates, unless otherwise on the ballot expressly stated; and 
if it has been so marked as to indicate an intention to vote for three 
persons for such office it shall be counted one vote for each of such can- 
didates, unless otherwise on the ballot expressly stated; and if it has 
been so marked as to indicate an attempt to vote for more persons for 
representatives than the voter is entitled to vote for the votes for repre- 
sentatives on such ballot shall not be counted. 

[Printed instructions for voters.] § 18. The officer or officers 
whose duty it is to have the ballots printed shall* prepare full instruc- 
tions for the guidance of voters at each election as to obtaining ballots, 
as to the manner of marking them and the method of gaining assistance 
and as to obtaining new ballots in place of those accidentally spoiled; 
and they shall respectively cause the same, together with copies of sec- 
tions twenty-one (21), twenty -two (22), twenty-three (23), twenty-four 
(24), twenty-five (25), twenty-eight (28) and twenty-nine (29) of this 
act, to be printed in large, clear type, on separate cards, to be called 
cards of instruction; and such officer or officers shall furnish to the 
judges of election a sufficient number of such cards of instruction to 
enable the judges of election to comply with the provisions of this act. 
[Instruction cards and specimen ballots to be posted.] § 19. The judges 
of election shall cause not less than one of such cards to be posted in each voting 
booth provided for the preparation of ballots, and not less than four of such cards 
to be posted in and about the polling places upon the day of election. Judges of 
election shall, not less than five days prior to an election, cause to be conspicuously 
posted, in five or more public places in their voting precinct or election district, a 
card of instruction and a specimen ballot printed on colored paper, containing the 
names, residence and party or political affiliations of all candidates nominated as 
herein provided, and to be voted for in such precinct, substantially in the form of 
the general ballot to be used herein, and the officers or authorities charged with 
the printing and distributing of the ballots shall cause to be published, prior to the 
day of election, in at least two newspapers, if there be so many published in such 
county, representing the political parties which cast at the preceding election the 
largest and next largest number of votes, a list of all the nominations made as here- 
in provided, and to be voted for at such election, as near as may be, in the form in 
which they shall appear upon the general ballot. The officer or officers whose 
duty it is to cause the printing and distribution of the ballots shall have printed a 
sufficient number of specimen ballots and deliver the same to the judges of election 
so as to enable said judges to comply with the provisions of this act. [As amended 
May 26, 1897.] 

[Judges have charge of ballots.] § 20. The judges of election of 
their respective election precincts or election districts shall have 
charge of the ballots and furnish them to the voter as hereinafter set 
forth. 

[Booths at polling places — stationery, etc. — booths private.] § 21. 
All officers upon whom is imposed by law the duty of designating or 
providing polling places shall provide in each polling place so desig- 
nated or provided a sufficient number of booths, which shall be pro- 
vided with such supplies and conveniences, including shelves, pens, 



THE MODE OF ELECTIONS. 515 

penholders, ink, blotters and pencils, as will enable the voter to prepare 
his ballot for voting, and in which voters may prepare their ballots, 
screened from all observation as to the manner in which they do so, and 
a guard rail shall be so constructed and placed that only such persons 
as are inside said rail can approach within six feet of the ballot box and 
of such voting booths. The arrangements shall be such that the voting 
booths can only be reached by passing within said guard rail. They shall 
be within plain view of the election officers, and both they and the bal- 
lot boxes shall be within plain view of those outside the guard rail. Each 
of said booths shall have three sides inclosed, one side, in front, to be 
closed with a curtain. Each side of each booth shall be six feet and 
four inches high, and the curtain shall extend to within two feet of the 
floor, and shall be closed while the voter is preparing his ballot ; and such 
booths shall be well lighted. Each booth shall be at least thirty-two 
inches square and shall contain a shelf at least one foot wide, at a con- 
venient height for writing. No person other than the election officers and 
the challengers allowed by law, and those admitted for the purpose of 
voting as hereinafter provided, shall be permitted within the guard rail, 
except by authority of the election officers, to keep order and enforce 
the law. The number of voting booths shall not be less than one to every 
seventy-five voters who voted at the last preceding election in the dis- 
trict. The expense of providing booths and guard rails and other things 
required in this act shall be paid in the same manner as other election 
expenses. [As amended June 19, 1893.] 

[Manner of voting — checking on register list.] § 22. Any per- 
son desiring to vote shall give his name and, if required to do so, his 
residence, to the judges of election, one of whom shall thereupon 
announce the same in a loud and distinct tone of voice, clear and audi- 
ble; and if such name is found on the register of voters by the officer 
having charge thereof he shall likewise repeat said name and the voter 
shall be allowed to enter the space inclosed by the guard rail, as above 
provided. One of the judges shall give the voter one, and only one, 
ballot, on the back of which such judge shall indorse his initials in 
such manner that they may be seen when the ballot is properly folded, 
and the voter 5 s name shall be immediately checked on the register list. 
At all elections, when a registry may be required, if the name of any 
person so desiring to vote at such election is not found on the register 
of voters he shall not receive a ballot until he shall have complied with 
the law prescribing the manner and conditions of voting by unregistered 
voters. If any person desiring to vote at any election shall be chal- 
lenged he shall not receive a ballot until he shall have established his 
right to vote in the manner provided by law. Besides the election 
officer not more than two voters in excess of the whole number of voting 
booths provided shall be allowed in said inclosed space at one time. 

Manner of preparing ballot.] § 23. On receipt of his ballot the 
voter shall forthwith, and without leaving the inclosed space, retire 
alone to one of the voting booths so provided and shall prepare his 



516 . TOWNSHIP ORGANIZATION LAWS. 

ballot by making in the appropriate margin or place a cross (X) oppo- 
site the name of the candidate of his choice for each office to be filled, 
or by writing in the name of the candidate of his choice in a blank 
space on said ticket, making a cross (X) opposite thereto;, and incase 
y)f a question submitted to the vote of the people, by making in the 
appropriate margin or place a cross (X) against the answer he desires 
to give: Provided, however, if he shall desire to vote for all of the 
candidates of one political party or group of petitioners, he may place 
such mark at the appropriate place preceding the appellation or title 
■flnder which the names of the candidates of such party or group of 
petitioners are printed, and the ballot so marked shall be counted as 
cast for all of the candidates named under that title: Provided, fur- 
ther, that the voter may place such mark at the appropriate place pre- 
ceding the appellation or title of one party or group of petitioners and 
may also mark, at the appropriate place preceding the name or names 
©f one or more candidates printed under the appellation or title of some 
•ther party or group of petitioners, and a ballot so marked shall be 
counted as cast for all the candidates named under the appellation or 
title which has been so marked, except as to the officers as to which he 
kas placed such mark preceding the name or names of some other can- 
didate or candidates printed under the title of some other party or group 
•f petitioners, and as to such it shall be counted as cast for the candi- 
date or candidates preceding whose name or names such mark may 
have been placed. Before leaving the voting booth the voter shall fold 
his ballot in such manner as to conceal the marks thereon. He shall 
then vote forthwith in the manner now provided by law, except that the 
mumber corresponding to the number of the voter on the poll books 
■hall not be indorsed on the back of his ballot. He shall mark and 
deposit his ballot without undue delay, and shall quit said inclosed 
epace as soon as he has voted. No voter shall be allowed to occupy a 
voting booth already occupied by another, nor remain within said 
inclosed space more than ten minutes, nor to occupy a voting booth 
nore than five minutes in case all of said voting booths are in use and 
other voters waiting to occupy the same. No voter not an election offi- 
cer, shall, after having voted, be allowed to re-enter said inclosed space 
during said election. No person shall take or remove any ballot from 
the polling place before the close of the poll. No voter shall vote or 
offer to vote any ballot except such as he has received from the judges 
of election in charge of the ballots. Any voter who shall, by accident 
or mistake, spoil his ballot, may, on returning said spoiled ballot, re- 
ceive another in place thereof. 

[Assistance to illiterate voter.] § 24. Any voter who may declare 
upon oath that he can not read the English language or that by reason of 
any physical disability he is unable to mark his ballot, shall, upon re- 
quest, be assisted in marking his ballot by two of the election officers of 
different political parties, to be selected from the judges and clerks of 
the precinct in which they are to act, to be designated by the judges of 
election of each precinct at the opening of the polls. Such officers 



THE MODE OF ELECTIONS. 517 

shall mark the ballot as directed by the voter, and shall thereafter give 
no information regarding the same. The clerks of election shall enter 
upon the poll lists after the name of any elector who received such assist- 
ance in marking his ballot a memorandum of the fact. Intoxication shall 
not be regarded as a physical disability, and no intoxicated person shall 
be entitled to assistance in marking his ballot. 

[Absence for voting purposes — employer preventing — penalty.] § 
25. Any person entitled to vote at a general election in this state shall, 
on the day of such election, be entitled to absent himself from any servi- 
ces or employment in which he is then engaged or employed for a 
period of two hours between the time of opening and closing of the polls; 
and such voter shall not, because of so absenting himself, be liable to 
any penalty, nor shall any deduction be made on account of such 
absence from his usual salary or wages : Provided, however, that ap- 
plication for such leave of absence shall be made prior to the day of 
election. The employer may specify the hours during which said 
employe may absent himself as aforesaid. Any person or corporation 
who shall refuse to any employe the privilege hereby conferred, or shall 
subject an employe to a penalty or deduction of wages because of the 
exercise of such privilege, or who shall directly or indirectly violate the 
provisions of this section, shall be deemed guilty of a misdemeanor and 
be fined in any sum not less that five dollars ($5) nor more than one 
u undred dollars ($100). 

[Ballots not counted — spoiled ballots] § 26. If the voter mark 
more names than there are persons to be elected to an office, or if for 
any reason it is impossible to determine the voter's choice for any office 
to be filled, his ballot shall not be counted for such office. No ballot 
without the official endorsement shall be allowed to be deposited in the 
ballot box, and none but ballots provided in accordance with the provi- 
sions of this act shall be counted. Ballots not counted shall be marked 
"defective" on the back thereof and ballots to which objection has been 
made by either of the judges or challengers shall be marked "objected 
to" on the back thereof, and a memorandum signed by the judges stating 
how it was counted shall be written upon the back of each ballot so 
marked, and all ballots marked defective or objected to shall be en- 
closed in an envelope securely sealed and so marked and endorsed as to 
clearly disclose its contents. All such ballots not voted, and all that 
have been spoiled by the voters while attempting to vote, shall be 
returned by the judges of election to the officer or authorities charged 
with the printing and distribution of the ballots and a receipt taken 
therefor, and shall be preserved six months; such officer shall keep a 
record of the number of ballots delivered at each polling place, the 
name of the person to whom and the time when delivered, and he shall 
also enter upon such record the number and character of ballot returned, 
with the time when and the person by whom they are returned. 

[Canvass of votes — proclamation — ballots destroyed.} § 27. When 
the canvass of the ballots shall have been completed, as now provided 



518 TOWNSHIP ORGANIZATION LAWS. 

by law, the clerks shall announce to the judges the total number of votes 
received by each candidate; each judge of the election shall proclaim in 
a loud voice the total number of votes received by each of the persons 
voted for and the office for which he is designated and the number of 
votes for and the number of votes against any proposition which shall 
have been submitted to a vote of the people; such proclamation shall 
be prima facie evidence of the result of such canvass of the ballots. 
Immediately after making such proclamation, and before separating, 
the judges shall fold in two folds, and string closely upon a single piece- 
of flexible wire, all ballots which have been counted by them, except 
those marked "objected to, " unite the ends of such wire in a firm knot, 
seal the knot in such manner that it can not be untied without breaking 
the seal, enclose the ballots so strung in a secure canvas covering and 
securely tie and seal such canvas covering with official wax impression 
seals to be provided by the judges, in such manner that it can not be , 
opened without breaking the seals, and return said ballots, together with 
the package containing the ballots marked ' 'defective" or "objected to," 
in such sealed canvas covering to the proper clerk or to the board of 
election commissioners, as the case may be, and such officer shall care- 
fully preserve said ballots for six months, at the expiration of that time 
shall destroy them by burning without previously opening the packages. 
Such ballots shall be destroyed in the presence of the official custodian 
thereof and two electors of approved integrit}^ and good repute and 
members respectively of the two leading political parties. The said 
electors shall be designated by the county judge of the county in which 
such ballots are kept: Provided, that if any contest of the election of 
any officer voted for at such election shall be pending at the expiration 
of said time the said ballots shall not be destroyed until such contest 
is finally determined. In all cases of contested elections the parties 
contesting the same shall have the right to have said ballots opened and 
to have all errors of the judges in counting or refusing to count any 
ballot, corrected by the court or body trying such contest, but such 
ballots shall be opened only in open court or in open session of such 
body and in the presence of the officer having the custody thereof. [As 
amended June 9, 1897.] 

[Electioneering at polls prohibited — penalty.] I 28. No per- 
son whatever shall do any electioneering or soliciting of votes on election 
day within any polling place or within one hundred (100) feet of any 
polling place; no person shall interrupt, hinder or oppose any voter 
while approaching the polling place for the purpose of voting. Who- 
ever shall violate the provisions of this section shall be punished by a 
fine of not less than twenty-five dollars ($25) nor more than one hundred 
dollars ($100) for each and every offense; and it shall be the duty of 
the judges of election to enforce the provision of this section. 

[Unlawful exhibition of ballot — false statement — penalty. 
I 29. Any voter who shall, except as herein otherwise provided, allow his 
ballot to be seen by any person with an apparent intention of letting it 
be known how he is about to vote, or who shall make a false statement 



THE MODE OF ELECTIONS. 519 



as to his inability to mark his ballot, or any person who shall interfere, or 
attempt to interfere, with any voter when inside said inclosed space, 
or when marking his ballot, or who shall endeavor to induce any voter 
before voting to show how he marks or has marked his ballot, shall bu 
punished by a fine of not less than five dollars ($5) nor more than one 
hundred dollars ($100), and it shall be the duty of the election judges 
to enforce the provisions of this section. 

[Destroying poster lists, etc. — penalty.] § 30. Any person who 
shall, prior to an election, wilfully destroy or deface any list of candi- 
dates posted in accordance with the provisions of this act, or who, dur- 
ing an election shall wilfully deface, tear down, remove, or destroy any card 
of instructions or specimen ballot printed and posted for the instruc- 
tion of voters, or who shall during an election, wilfully remove or des- 
troy any of the supplies or conveniences furnished to enable voters to 
prepare their ballots, or who shall wilfully hinder the voting of others, 
shall be punished by a fine not less than ten dollars ($10) nor more 
than one hundred dollars ($100). 

[Destroying, etc, certificate of nomination— spurious ballots, etc. — 
penalty.] § 31. Any person who shall falsely make or wilfully destroy 
any certificate of nomination or nomination papers, or any part thereof, or 
any letter of withdrawal, or file any certificate of nomination or nomi- 
nation paper, knowing the same or any part thereof to be falsely made, 
or suppress any certificate of nomination or nomination paper or any 
part thereof, which has been duly filed, or forge or falsely make the 
official indorsement on any ballot or shall take from the polling place 
any official ballot or substitute therefor any spurious or counterfeit 
ballot, or make, use, circulate, or cause to be made or circulated, as an offi- 
cial ballot, any paper printed in imitation or resemblance thereof, or 
wilfully destroy or deface any ballot, or wilfully delay the delivery 
of any ballots, shall be punished by a fine not less than one huDdred 
dollars ($100) and not exceeding one thousand ($1,000) dollars, or by 
imprisonment in the penitentiary not less than one year and not exceed- 
ing five years, or b} T both such fine and imprisonment. 

[Xeglect of officer to perform duties.] § 32. Any public officer 
upon whom a duty is imposed by this act who shall wilfully neglect to 
perform such duty, or who shall wilfully perform it in such a way as 
to hinder the object of this act, shall be punished by a fine of not less 
than $5 nor more than $1,000, or by imprisonment in the penitentiary 
for not less than one year and not exceeding five years, or by both such 
fine and imprisonment. 

[Published in pamphlet form.] § 33. It shall be the duty of the 
Secretary of State, with the aid and advice of the Attorney General, to 
cause one thousand copies of this act to be printed immediately, in 
pamphlet form, with all necessary forms and instructions to assist elec- 
tion officers to cany it into effect, and to distribute the same through the 
county clerks of the several counties of the state. 

[Time polls to be kept open.] § 3-4. At all elections to which this 



I 



520 TOWNSHIP ORGANIZATION LAWS. 

act applies, except at elections held in cities, villages and incorporated 
towns which have heretofore adopted or may hereafter adopt the pro- 
visions of an act entitled "An act regulating the holding of elections 
and declaring the results thereof in cities, villages and incorporated 
towns," approved June 19, 1885, the polls shall be opened at seven 
o'clock in the morning and shall be closed at five in the evening. 

[Repeal of prior acts — effect on penalties.] § 35. All acts and 
parts of acts inconsistent with the provisions of this act are hereby re- 
pealed: Provided, that this act shall not be construed to repeal an act 
entitled "An act regulating the holding of elections and declaring the 
results thereof in cities, villages and incorporated towns," approved 
June the 19th, 1885, or any of the amendments thereto; but all elec- 
tions in cities, villages and incorporated towns which may have hereto- 
fore adopted or may hereafter adopt the said act shall be held in 
accordance with the provisions of the aforesaid act, except as to the 
manner of making nominations for office, the manner of providing, 
printing and distributing ballots, the form of ballots, the arrangement 
and the furnishing of polling places and voting booths, and the manner 
of voting and the numbering and preserving of ballots, all of which 
shall be in conformity with the provisions of this act. No penalty 
provided for a violation of any of the provisions of this act shall be 
construed as a substitute for, or repeal of, any penalty provided in the 
aforesaid act of June 19, 1885, for a violation of any of the provisions 
of said act. 

MAY VOTE FOR SCHOOL OFFICERS. 

AN ACT to entitle women to vote at any election held for the purpose of choosing any officer un- 
der the general or special school laws of this state. Approved June 19, 1891. 

[Women may vote for school officers.] Be it enacted, etc. I 1. 
Any woman of the age of twenty-one years and upwards, belonging to 
either of the classes mentioned in article 7 of the constitution of the 
state of Illinois, who shall have resided in this state one year, in the 
county ninety days, and in the election district thirty days preceding 
any election held for the purpose of choosing any officer of schools un- 
der the general or special school laws of this state, shall be entitled to 
vote at such election in the school district of which she shall at the time 
have been for thirty days a resident. Provided, any woman so desirous 
of voting at any such election shall have been registered in the same 
manner as is provided for the registration of male voters. 

[Ballot — what to contain — how deposited.] I 2. Whenever 
the election of public school officers shall occur at the same election at 
which other public officers are elected, the ballot offered by any woman 
entitled to vote under this act shall not contain the name of any person 
to be voted for at such election except such officers of public schools, 
and such ballots shall all be deposited in a separate ballot-box, but can 
vassed with other ballots cast for school officers at such election. 



"01V. IX.] COUNTIES — ALTERATION OF COUNTY LINES. 521 



DIVISION IX. 

COUNTIES. (1) 

LS ACT to revise the law in relation to counties. [Approved and in force March SL, 187*. 

Rev. Stat. ch. S4.J 

BOUNDARIES AND JURISDICTION. 

1. Boundaries. 

2. Jurisdiction over rivers. 

3. Jurisdiction over Lake Michigan. 

1. Boundaries.] § 1. That the boundaries of the several 
counties of this state shall remain as now established until the 
same be changed according to law. 

2. Jurisdiction over rivers.] § 2. Each county bounded by 
either the Mississippi, Ohio or Wabash river shall have jurisdic- 
tion over such river to the extent it is so bounded, which juris- 
diction may be exercised concurrently with the contiguous states 
bounded by such river. [R. S. 1845, p. 133, § 21; L. 1849, p. 
134, § 1, 2. 

3. Jurisdiction oyer Lake Michigan.] § 3. Each of the coun- 
ties bordering on Lake Michigan shall have jurisdiction over said 
lake eastwardly, to the east line of the state. 

ALTERATION OF COUNTY LINES. 

4. Petition to county board — Election ordered. 

5. Notices of election. 

6. Form of ballot — Effect of vote. 

7. Restrictions. 

8. Adjustment of debts. 

9. When territory released. 

10. When elections at discretion of county board. 

4. Petition to county board— Election ordered.] § 4. When a 
majority of the legal voters, residing upon any territory, not less 
than half of one congressional township, shall petition the 
county board of their own county, and also of the county to which 
they desire such territory to be transferred, for leave to have 
such territory transferred to such county, it shall be the duty of 
the several county boards so petitioned to order an election for 

(i) The present law relating to counties is a complete revision of the whole 
law relating to the same, and although it confciins no express words of repeal, it must be re- 

f'arded as a repeal of all other laws on the subject. Devinev. Board of Com re, of Cook Co.. 84 
a k.. 590. 



522 COUNTIES. [DIV. IX. 

such purpose in their respective counties, to be held within 
three months from the time of receiving such petition; which 
election shall be governed by the laws relating to general elec- 
tions, and returns of said election shall be made to the secretary 
of state as for county officers. [See Const., art. 10, § 3, p. 76. 

5. Notices of election.] § 5. Notices of such election shall 
contain a description of the territory proposed to be transferred, 
the names of the counties from and to which such transfer is in- 
tended to be made, and shall be posted as required for general 
elections. 

6. Form of ballot— Effect of vote.] § 6. The ballots used in 
the said elections may be in the following form, to- wit : "For 
transferring territory," and "Against transferring territory," 
when, if a majority of the voters voting upon said question in 
the county from which said territory is proposed to be taken, and 
a majority of the voters of the county to which the same is pro- 
posed to be transferred, shall be " For transferring territory," 
then the said territory shall be transferred to and become a part 
of the county to which it is proposed to transfer the same, on 
and after the first day of March succeeding such elections, and 
shall be subject to all the laws, rules and regulations thereof: 
Provided, that all assessments and collection of taxes, and judi- 
cial or other official proceedings commenced prior to said first 
day of March, shall be continued, prosecuted and completed, in 
the same manner as if no such transfer had been made : And, 
provided further, that all township or precinct officers within 
said transferred territory shall continue to hold their respective 
offices within the county to which they may be transferred, until 
their respective terms of office expire. 

7. Restriction.] § 7. No county shall be reduced, under the 
provisions of this act, to less contents than 400 square miles ; 
nor shall any county line be made to pass within less than ten 
miles of the county seat of the county from which territory is 
so transferred. [See Const., art. 10, § 1, p. 76. 

8. Adjustment of debts.] § 8. No territory transferred under 
the provisions of this act shall be released from the payment of 
its proportion of the debts of the county from which such terri- 
tory is transferred ; and such proportionate indebtedness from 
such transferred territory shall be collected by the county to 
which such territory is transferred, at an equal or greater rate 
than is levied and collected in the county from which such terri- 
tory was transferred — such rate to be ascertained by the certifi- 
cate of the county clerk of said last named county, and when so 
collected, to be paid over to the county entitled thereto. See 
Const., art. 10, § 3, p. 76. 



DH. 12L l 



NEW COUNTIES. 



523 



9. Whsn territory released.] § 9. When the county to which 
such territory is transferred shall also be indebted, the county 
board of such county shall release such transferred territory from 
the payment of such indebtedness to an amount equal to that 
which said territory is required to pay to the county from which 
it was transferred. 

10. When elections at discretion of county board.] § 10. 

When a majority of the legal voters of any territory, less than half 
of one congressional township, shall petition the county boards as 
provided in section four of this act, the said county boards may, in 
their discretion, order elections to be held as herein provided ; and 
in any case where elections have been held under this act, and the 
result has been adverse to the petitioners, it shall be in the discre- 
tion of the said boards to order another election, on a petition to 
transfer the same territory, within three years from the time of 
holding such former election. 

NEW COUNTIES. 



11. Petition to county boards — Election. 

12. Certificate of result to secretary of state — Notice to governor — 

Election — Commission — Term of office — Duties. 

13. Justices, etc., continued in office. 

14. Canvass and return of votes. 

15. Oath of office — Organized — Circuit court. 

16. Transfer of suit — Lien of judgments, etc. 

17. Adjustment of property and debts. 

18. Commissioner to copy records. 

19. Duty of such commissioner. 

20. Further duties — Evidence. 

21. Fixing county seat. 

11. Petition to county board— Election.] § 11. Whenever it 
is desired to form a new county out of one or more of the then 
existing counties, and a petition praying for the erection of such 
new county, stating and describing the territory proposed to be 
taken for such new county, together with the name of such pro- 
posed new county, signed by a majority of the legal voters resid- 
ing in the territory to be stricken from such county or counties, 
shall be presented to the county board of each county to be affec- 
ted by such division, and it appearing that such new county can 
be constitutionally formed, it shall be the duty of such county 
board or county boards to make an order providing for the sub- 
mission of the question of the erection of such new county to a 
* vote of the people of the counties to be affected, at the next suc- 
ceeding general election for the election of members of the general 
assembly, of which the notice shall be given, the votes canvassed, 
*ind the returns made as in case of election of county officers or 



524 COUNTIES. [DIV. IX. 

members of the general assembly ; and the form of the ballot to be 
used in the determination of such question shall be as follews: 
"For new county," and "Against new county."(l) 

12. Certificate of result to secretary of state— Notice to gov- 
ernor — election, etc.] § 12. If it shall appear that a majority of 
all the votes cast at such election, in each of the counties interes- 
ted, is in favor of the erection of such new county, the county 
clerk of each of said counties shall certify the same to the secre- 
tary of state, stating in such certificate the name, territorial con- 
tents and boundaries of such new county ; whereupon the secretary 
of state shall notify the governor of the result of such election, 
whose duty it shall be to order an election of county officers for 
such new county, and at such time as he shall designate, and he 
may, when necessary, fix the place [of] holding election, notice of 
which shall be given in such manner as the governor shall direct. 
At such election the qualified voters of said new county shall elect 
all county officers for said county, except as hereinafter excepted, 
who shall be commissioned and qualified in the same manner as 
such officers are in other counties in this state, and who shall con- 
tinue in office until the next general election for such officers, and 
until their successors are elected and qualified, and who shall have 
all the jurisdiction and perform all the duties which are or may 
be conferred upon such officers in other counties of this state. 

13. Justices, etc., continued in office.] §13. All the justice® 
of the peace, constables, and other township or precinct officers, 

(1") Counties are the creatures of legislative will. They are vested with certain 
corporate powers, in order to enable them to perform the duties required of them as part of 
the machinery of the State. The legislature may enlarge, modify or diminish them at any 
time, subject to the restriction of the State Constitution. Laramie Co. v. Albany Co., 92 if. 
8. R., (2 Otto), 307. But the legislature cannot abolish counties, and form their territory 
into one or more counties, nor take territory from one county and add it to another, 
without submitting the act to a vote of the inhabitants affected by such changes; nor can 
a county seat be removed without the affirmative vote of the electors of the county, nor can 
county lines be changed except by the vote of a majority of all the legal voters voting on the 
question. The People v. Marshall, 12 111. R., 391; The People v. War field, 20 111 11.160. An organ- 
ized county may be disorganized by the legislature. State v. McFadden, 23 Minn. R., 40. 

Counties are public corporations, and are completely under legislative con- 
trol. They can be changed, modified, enlarged, restrained or repealed, to suit the ever varying 
exigencies of the state, subject to the constitution. Coles \. Madison Co., Breese R., 154; The 
People v. Wren, 4 Scam. R, 269. 

A county may toe created and nave existence as sucli, notwithstanding it has no 
county officers. And where a new county is created by setting off for that purpose organized 
townships from existing counties; the supervisors of these townships would be supervisors in 
the new county, and their powers would continue under the general law regulating the same, 
unless there be some provision to the contrary in the law creating the new county. Rice v. Rud- 
diman, 10 Mich. R., 126. 

In determining tine area of a county, bodies of -water lying within its boun- 
daries are to be computed and considered as integral parts thereof. Powers ex rel., etc., v. Larra- 
bee, 1 Wis. R., 200. 

The government surveys are to be deemed correct, and a county containing just twenty-five 
townships, according to government survey, is to be deemed prima facie to contain an area of 
exactly nine hundred square miles. Brayton ex rel., etc., v. Merriman, 6 Wis. R., 14. 

Although the legislature, in an act submitting to the electors the question of a division of 
their county, may have prescribed a form for the ballot, yet all other ballots not in that precise 
form are not thereby excluded; but when the intention of the elector can be clearly ascertained, 
from the ballot itself, or by the aid of other competent evidence, such intention, should have 
effect, and the vote be counted. Spaulding ex rel., etc., v. Elwood, 12 Wis. R. 551. 



DIY. IX.] NEW COUNTIES. 525 

who were previously elected and qualified in the county or coun- 
ties from which such new county has been formed, whose term of 
office shall not have expired at the time of said election, and 
whose residence shall be embraced within the limits of said new 
eounty, shall continue in office until their terms of office shall 
expire, and until their successors shall be elected and qualified. 

14. Canvass and return of votes.] § 14. The votes for the 
county officers of said new county shall be canvassed, and returns 
made, by the county clerk or county clerks of the county or coun- 
ties from which such new county was formed, as provided by law 
in other cases. 

15. Oath of office— Organized— Circuit court] § 15. The oath 
of office may be administered to the several county officers of such 
new county by any person authorized by law to administer oaths ; 
and as soon as said county officers are duly qualified, the county 
shall be regarded as legally organized, and for judicial purposes 
shall be deemed and taken as belonging to the circuit in which 
said new county, or the greater part thereof, is embraced, and 
terms of the circuit court shall be held at such place in said new 
county as the county board thereof shall designate, until the county 
seat thereof shall be permanently located. The times of holding 
such court shall be appointed by the judge thereof, until otherwise 
provided by law. 

16. Transfer of suits, etc., lien of judgments, etc.] §16. The 
courts of any county or counties from which such new county is 
erected may, by proper order, transfer any suit or other legal pro- 
ceeding affecting real estate in such new county, to the proper 
court of such new county, or may transfer any suit and all papers 
and records pertaining thereto to such new county, when all the 
parties thereto are residents of such new county ; but all judg- 
ments and other liens in the county or counties from which such 
new county was erected, shall have the same effect as if no new 
county had been erected. 

17. Adjustment of property and debts.] § 17. All the prop- 
erty, both real and personal, and all debts, liabilities and choses 
in action of every kind, belonging to the county or counties from 
which such new county was formed, shall be divided by the several 
county boards of the counties interested, between the county or 
counties from which such new county is formed and the new 
county, in proportion to the assessed value of property for the 
last preceding year which has been taken from such original 
county or counties and carried to such new county ; and if such 
boards cannot agree upon such division they may refer the matter 
of difference to arbitrators, or the rights to such property may be 
settled by a bill in chancery, filed by either party for that purpose. 



526 COUNTIES. [DIV. DL 

In case the said property cannot be divided or removed, the county 
receiving the same shall pay to the other a proportionate value 
for the same. 

18. Commissioner to copy records,] § 18. The county board 
of such new county shall, at any session of said board, by an ordei 
to be entered of record, appoint some competent person a com- 
missioner, for the purpose hereinafter expressed, who shall take an 
oath of office before some person authorized by law to administei 
oaths. Said board shall, at the same time, provide a sufficient 
number of blank books, and deliver them to said commissioner, 
who shall receipt for the same to the county clerk of said county. 

19. Duty of such commissioner.] §19. As soon as said books 
shall be delivered to said commissioner, he shall record in each a 
copy of the order of his appointment and of his oath of office, 
and shall thereupon proceed to transcribe into such books, from 
the records of the county or several counties from which the new 
county is formed, all such deeds, mortgages and title papers of 
every description, with the certificates of acknowledgment thereto, 
and the date of the filing of the same for record, of lands lying in 
said new county which previously were recorded in the counties 
from which such new county was formed ; and there shall be allowed 
said commissioner such sum as his services aforesaid are reasonably 
worth, to be paid out of the county treasury of the said new county. 

20. Further duties — Evidence.] § 20. Said commissioner shah 
note, at the end of each paper he shall transcribe, the book and 
page from which the same was transcribed, and shall make a cor- 
rect double index of said records ; and on the completion of his 
duties, said commissioner shall return said books to the recorder 
of deeds of said new county, with his certificate attached thereto, 
showing that he has complied with the law ; whereupon they shall 
be taken and considered, to all intents and purposes, as books of 
records of deeds, mortgages and title papers for said new county. 
And copies of said record, certified by the officer having the cus- 
tody of the same, shall be evidence in all courts and places, in the 
same manner that copies of records are evidence in other cases, 
and with like effect. 

21. Fixing county seat] § 21. For the purpose of fixing the 
permanent location of the county seat of such new county, the 
voters of said county shall, at said election for county officers, 
vote for some place, to be designated upon their ballots, for a 
county seat ; upon which ballot shall be written or printed, or 
partly written and partly printed, "For County Seat," after 
which words shall be written or printed the name of the place 
intended for the county seat. The place receiving a majority of 
all the legal votes cast upon the question shall be the county seat 



&IV. EX.] POWERS OF COUNTIES AND COUNTY BOARDS. 52 < 

of said county. But if no place shall receive a majority of all 
the votes cast upon the question, then it shall be the duty of the 
county board of said county to call another election within sixty 
days thereafter, at the several places of holding elections in said 
county, at which election the voters of said county shall proceed 
to vote as before, but shall choose from the two places having 
the greatest number of legal voters at the former election ; and the 
place having the majority of all the legal votes cast at the second 
election shall be the permanent county seat of said county. (1) 

OF THE POWERS AND DUTIES OF COUNTIES AND COUNTY BOARDS. 

22. Corporate name of county. 

23. By whom corporate powers exercised. 

24. Enumeration of powers of county: 

1. To purchase and hold property. 

2. To sell and convey property. 

3. To make contracts and do other necessary acta* 

4. To prevent cruelty to animals. 

25. Powers of county board : 

1. Care, etc., of property of county. 

2. Manage county funds and business. 

3. Settle accounts of county. 

4. Provide a work house. 

5. Provide for an insane asylum. 

6. Levy taxes. 

7. Vacate town plat on petition, etc. 

8. Change name of town plat on petition. 

26. Duties of county board : 

1. Provide a court house, jail, etc— Offices, etc.— Restriction* 

2. Provide fire-proof safes. 

3. Provide books, stationery, etc. 

4. Publish statement of proceedings. 

5. Publish annual financial statement. 

27. Raising tax in addition to constitutional limit. 

28. Issuing bonds and raising additional tax may be included, etc. 

29. Former deeds, etc., confirmed. 

30. Contracts, etc. — Rights of county — Suits. 

31. Venue of suits by or against a county. 

32. Jurors and witnesses. 

33. Duty of county board to prosecute and defend. 

34. How judgments against county paid. 

35. Auditing claims against county— Appeal. 

36. Summons against county board on appeal. 

37. Transcript — Filing same. 

38. Time of fixing compensation of county officers. 

39. Funds kept separate. 

40. Issuing county bonds — Election to authorize. 

41. Neglect of duty. 

22. Corporate name of county.] § 22. Each conntv which 
has heretofore been, or may hereafter be established in this state, 

(1) The question of the location of a county seat murt be inquired into by a di- 
rect proceeding. It cannot be determined collaterally. Robinson v. Moore, 21 111. R~, 135. 



528 COUNTIES. [DIV. IX. 

according to the laws thereof, shall be a body politic and cor- 
porate, by the name and style of " The county of .... . ," and 
by that name may sue and be sued, plead and may be impleaded, 
defend and be defended against in any court of record having 
jurisdiction of the subject matter, either in law or equity, or 
other place where justice shall be administered. (1) [R. S. 1845, 
p. 130, § 1. 



A conveyance of land to a county, in consideration of the location of a county seat at a par- 
ticular place, does not deprive the legislature of the right to remove the same whenever the 
public good shall require a change; nor does such conveyance, if unconditional, give the do- 
ners of the property a right of action for damages sustained in consequence of such removal. 
Even had the doners of the property made an express agreement that the land should revert in 
case of the removal of the county seat, it would not avail them, unless it had been expressed on 
the face of the deed, or in a separate instrument. Such an agreement cannot rest in parole. 
Adams v. Logan Co., 11 111. R., 336; Harris v. Shaw, 13 111. R„ 466. 

There cannot be two seperate locations of a county seat at the same tints } 

neither can there be a right of revertii g or returning to a former location, without an express 
law to that effect. Where a county seat is located temporarily at a point for a time mentioned, 
it will there remain for that time, and until a new location is fixed by law; which the legisla- 
ture would have the power to fix, as in the case of organizing a new county. Lord exrel., etc., v. 
Washington Co.. 2 Chand Wis. R., 247. 

Where, by division of a county, or creation of a new one, it is without a county seat, it may be 
established by the legislature without submitting it to the people. Powers ex rel., etc., v. Larra- 
bee, 1 Wis. R., 200. 

Upon the division of an old county, If the old county seat remains within its 
limits, it will continue to be its county seat; but if it falls within the limits of the new county 
it will not thereby become the county seat of that county. Attorney General v. Fitzpalrick, 2 Wis. 
R.,542. 

The result of an election on the question of removal of a county seat may be tested by man- 
damus to compel a county officer to hold his office at the place to which it is alleged to have 
been removed. Field ex rel., etc., v. Saxton et al., 1 Wis. R., 217; Gates ex rel., etc., v. Fetter, 12 
Id , 567. 

(1) Counties are involuntary quasi corporations; political or civil divisions 

of the State, created by general laws, to aid in the administration of the government. The 
statute prescribes all the duties which counties owe, and impose all the liabilities to which 
they are subject: and unless made so by express legislative enactment, they are not liable to 
persons injured by the wrongful neglect of duty or wrongful acts of their officers or agents done 
in the course of the execution of corporate powers, or in the performance of corporate duties. 
This rule is the same in respect to such other organizations, as townships, school districts and 
road districts. Simonds v. Clay County, 71 111. R., 355. Counties are merely a species of corporation 
with corporate powers, under a condition and a few specified purposes only, but deficient in 
many of the powers incident to the general character or corporations. Goodnow v. Com'rs Bam- 
sey Co., 11 Minn. R., 41. * 

Counties can neither sue nor be sued at the common law. Their rights and lia- 
bilities depend on statutory enactment Schuyler Co. v. Mercer Co., 4 Gilm. R„ 20. 
An action for money had and received, is maintainable against a county to 

recover money loaned to the county board and expended for the benefit of the county, although 
the contract of loan was invalid from want of authority on the part of the board. Wirtz v. 
Ormsby Co., 1 Nev. R., 370. 

It is held, that no action lies upon a county warrant or order, but that suit should be brought 
upon the claim for which the warrant was given. Allison v. Juniata Co., 50 Penn. St. R., 851. 

All actions against a county must be commenced and prosecuted to judgment and execution 
in the circuit court of that county. All actions wherein a county is plaintiff must be com- 
menced and prosecuted to judgment in the county of the defendant. Ordinarily a law which, 
in general terms, speaks of plaintiffs and defendants, applies to persons only, and does not ap- 
ply to states, counties and municipal corporations, unless expressly named. Schuyler Co. v. 
Mercer Co., 4 Gilm. R., 20. . 

The declaration in an action against a county to recover for the care and medical treatment 
of sick persons, should state that they were indigent, and residents of the county. Johnson v. 
Santa Clara Co., 28 Cal. R., 545. 

A county being a public corporation, subject to the control of the legislature', 
the legislature may release a penalty recovered in a popular action brought for the benefit of » 
county. Haliday v. People, 5 Gilm. R., 214. See Coles v. Madison Co., Breese R„ 115. 

Declarations of members of the county board are not evidence against theii 
county, unless made while officially representing the county, and while engaged in the transac- 
tion respecting which the declaration is made. La Salle Co. v. Simnwis, 5 Gilm. R„ 513. 



DIV. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 52 ( J 

23. By whom corporate powers exercised.] § 23. The powers 
of the county, as a body corporate or politic, shall be exercised 
by a county board, to-wit : In counties under township organiza- 
tion (except the county of Cook,) by the board of supervisors, 
which shall be composed of the town and such other supervisors 
as are or may be elected pursuant to law ; in the county of Cook, 
by a board of county commissioners, pursuant to section 7, arti- 
cle 10 of the constitution; in counties not under township or- 
ganization, by the board of county commissioners. (1) L. 1861, 
p. 236, § 4 

A book kept in the clerk's office of the county commissioners, under their direction, respect- 
ing the affairs of the county, though not a public record, is prima facie evidence against the 
county of the facts stated therein. Id. 

An execution cannot be issued on a judgment against a county. Knox Co. ▼. 
Arms, 22 m. R. , 175. See § 34, p. 454. Nor upon a decree in chancery. King et al. v. McDrew et aL, 
81 m. R., 418 

A county- has not the capacity to be sued, except it is conferred by special statute; 
and when that capacity is so conferred, the mode pointed out by the statute must be strictly pur- 
sued. Counties can be sued only in the name of the eounty. If sued in any other name it u» 
error, and there is no necessity of a plea of misnomer, as in ordinary cases. County of Rock Is- 
land v. Steele, 31 111. R., 543. The action should be brought against the county, and not against 
the individual members of the county board. Magee v. Cutter. 43 Barb. R., (N. Y.) 239. 

The county board having general authority to commence suits, may employ 
counsel in such suits, and even though an error is made as to their having a cause ot action, the 
counsel have a claim against the county for their reasonable charges ; and if the supervisors 
allow such accounts, and issue an order for the amount, the court will not interfere, by injunc- 
tion, to prevent payment of such order. Gillespie v. Broas, 23 Barb. R., (N. Y.) 370. 

The law which gave jurisdiction over county affairs to the board of supervisors, went into 
operation on the first Tuesday in April, 1850. The county corporation was not abolished by thij 
law. Its name was changed, but suits instituted in the old name did not therefore abate. Town 
oj Ottawa v. County of LaSalle, 11 111. R., 654. 

Counties, like individuals, -will be held to their liabilities, and will not be per- 
mitted to avoid them because of unimportant irregularities in the action of their officers. John- 
eon v. Stark Co., 24 111. R., 75. 

A county is not liable at common law nor by our statute, for damages caused by the 
defective condition of a bridge. Hedges v. County of Madison, 1 Gilm. R., 5(57. Even though the 
legislature has made it the duty ot* the county to keep it in repair. Reardon v. SL Louis Co., 36 
Mo. R.. 555. 

A county is not liable for damages sustained by a party from such a construction of a bridge 
that the water washed off large quantities of the plaintiff's land. Crowell v. Sonoma, 25 CaL 
R., 313. 

A county is not liable for fees in a criminal cnse, to the county clerk when the 
same cannot be collected of the criminal, or in case of acquital, although the law allows county 
clerks to charge and collect fees as clerks of circuit courts. Satterfield v. County of Jefferson, 85 
111. R., 347. 

(1) The county board possesses only such powers as are conferred by law. It has 
no power to appropriate any portion of the county funds to the use or benefit of a circuit judge, 
as comoensation to him in that capacity. Where county authorities appropriate the county 
funds for such purpose, a court of chancery will afford preventive relief by injunction. Perry 
et al. ▼. Kinnear et al., 42 111. R., 160; Bcauchamp v. Kankakee Co., 45 111. R., 274. 

Under the act providing for an election upon the Question of the removal of a county seat, 
and providing that in the event of the vote being in favor of removal, the board of supervisors 
shall erect or procure suitable buildings for the public offices, and a suitable place for holding 
courts, »ke board of supervisors may, in their official capacity, accept a contract of abscriptiou 
from individuals, to be paid on condition the vote shall be favorable to removal, for the purpose 
ot aiding in the erection of the public buildings contemplated by the act, and such a subscription 
will be valid and bindin g upon the parties making it Thompson v. Board of Supervisors, etc., 40 
I1L R.. 380. 

Where a clear legal duty rests upon the county board, being a matter in which 
they have no discretion, mandamus will lie. and is the proper remedy to compel them to per- 
form that duty. Boyce r. Supervisors of Cayuga, 20 Barb. R., 294. 

County boards cannot bind their counties by an act not within the limits of the express pow- 
ers conferred upon them by statute. They cannot allow a claim on any notions of their own aa 
to its equity. Chemung Canal Bank v. Supervisors of Chemung, 5 Denio., R., 517. 

Individual members of the county board can not, unless authorized, bind the body by express 



530 COUNTIES. [diy. rx. 



24. Powers.] § 24 Each county shall have power :(1) 

First — To purchase and hold the real and personal estate nec- 
essary for the uses of the county, and to purchase and hold, for 
the benefit of the county, real estate sold by virtue of judicial 
proceedings in which the county is plaintiff. (2) 

Second—To sell and convey or lease any real or personal estate 
owned by the county. [See Kev. Statutes, ch. 30, § 16. 

Third — To make all contracts and do all other acts in relation 
to the property and concerns of the county, necessary to the ex- 
ercise of its corporate powers.(3) 

Fourth — To take all necessary measures and institute proceed- 
ings to enforce all laws for the prevention of cruelty to animals, 
[K. S. 1845, p. 132, § 15; p. 135, § 36. 

25. Powers of county boards.] § 25. The county boards of the 
several counties shall have power :(i) 

promises. A corporation can only be bound by joint and corporate acta, done as a body, or by 
its authorized agent. The county board of supervisors have no power to act individually. They 
can only act as a body. Bouton et al. v. Board of Supervisors, 84 111. R., 884. 

Ths powers of a county are vested in a county board as a corporate entity, 
and n:>t in the commissioners as individual officers. Therefore before a county board can 
act it .aust be convened in legal session, either regular, adjourned or special; and a casual 
meeting of a majority of the commissioners does not create a legal session. Paola etc., R. R. Co. 
▼ Anderson Co., 16 Kansas It., 302. 

By the constitution, the right of a county to adopt township organization is made to depend 
expressly upon the affirmative vote of a majority of all within the county entitled to vote on 
the question. The power of the county commissioners over the county business continues un- 
til the organization is adopted by such vote. People ex rel. v. Brown et al., 11 111. R., 478. 

The chairman of the county board has no authority to hire premises or pertorm acts and bind 
the county thereby other than that conferred by the board. Gardner v. Board oj County Com'rs. 
21 Minn. R., 33. 

(1) A county may employ an agent to transact any business which concerns the 
county, and the agent may recover a fair compensation for his services. Webster Co. v. Taylor, 
19 Iowa R., 117; Hannibal etc., R. R. Co. v. Marion Co., 36 Mo. R.,294, 

(2) A grant to the supervisors for the use of the inhabitants of a particular 
town, is void; for, if the supervisors are a corporation, they have no capacity to take and hold 
lands as supervisors for the use of the inhabitants of a town, or for any other use or purpose 
than that of the county which they represent. Supervisors are vested with special powers and 
for special purposes only— they cannot act but by special authority. Lynch v. Hartwell, 8 Johns. 
R.,422. 

A conveyance of land to a county, in consideration that the county seat be lo- 
cated at a particular place, does not deprive the legislature of the power to remove the county 
«eat. The doners of land, if the conveyance be unconstitutional, cannot recover damages for 
such removal. An agreement that the land should revert, in case of removal, should be ex- 
pressed in the conveyance, and cannot rest in parol. Adams et al. v. Logan Co., 11 I1L R. 3:?6. 

(3) A contract made by the proper authorities of the county, with a physician, 
to render professional services to a pauper, and not entered on record, may be proved by parol. 
One who at the request of such authorities rendered aid to a person acknowledged by them as & 
pauper, need not prove the pauper legally entitled to such aid in order to enable him to recover 
for such services. Vermilion Co. v. Knight, 1 Scam. R., 97. 

Counties are not liable to pay interest on their contracts, except in pursuance 
of an express agreement to do so. But in actions originating in torts, they are liable to the 
same extent as private persons. County of Pike v. Hosford, 11 111. R., 170. 

(4) When the county board of a county have neglected to perform any duty 
required of them at their annual meeting, they may be compelled by mandamus to meet again 
and perform it. They cannot by their neglect nullify a statute imposing duties upon them. 
This was a case where the board of supervisors of Chenango county, in the State of New York, 
at their annual meeting in 1851, neglected to issue warrants for military commutation, which it 
was their duty to do by law at that meeting. The Supreme Court issued a mandamus requiring 
them to meet and issue the warrants. Held, that the mandamus was properly issued. People v. 
Supervisor* of Chenango, 4 Seld R., 317. 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 531 

First — To take and have the care and custody of all real and 
personal estate owned by the county. 

Second — To manage the county funds and county business, ex- 
cept as otherwise specifically provided.(l) 

Third — To examine and settle all accounts against the county, 
and all accounts concerning the receipts and expenditures of the 
county. (2) 

(1) The revenues of a county are not the property of the county in the sense in 
which the revenue of a private corporation is regarded; and the power of the legislature to 
direct its application is plenary, and when the legislature directs the application of its revenue 
to a particular purpose, or its payment to any party, it is a duty imposed and an obligation 
created upon the county. Board of Supervisors of, etc. v. Springfield, 63 111. R., 66. 

If a specific fund be given by the legislature to the county, to be held in trust for certain 
purposes, and the fund be diverted from its purpose and mixed with the general funds of the 
county, a mandamus may be awarded, directing the payment of the fund to the proper pur- 
poses out of the general funds of the county. Pike Co. v. State, 11 111. R., 202. 

The law does not give the county hoard authority to appropriate the county 
funds in aid of the construction of toll bridges, or to aid a private corporation in the construc- 
tion of a free bridge. And a bill to enjoin them from so misapplying the funds of the county is 
a proper remedy and will be sustained. Cotton et al. v. Hanckett et al., 13 111. R., 615. 

The county hoard cannot horrow money or issue a warrant as collateral security 
for money borrowed. Waltz v. Ormsley Co., 1 Nev. R., 370. 

(2) The power granted to the county hoard to examine, settle and allow all 

accounts chargeable against a county, involves the right to reject, if sufficient reason, in the 
opinion of the board, is not presented for the allowance. People v. Supervisors Duchess Co., 
9 Wend. R., 508. 

It is held in Michigan that a county is not liable to an attorney for defending a prisoner at 
the request of the court when the prisoner is poor and unable to employ counsel. Bacon v. 
Wayne Co., 1 Mich. R., 461. A county is not liable to the clerk of the circuit court for his fees 
an a scire facias upon a recognizance. Edgar Co. v. Mayor, 3 Gilm. R., 82. 

But it is the duty of the county to furnish lights and fuel for the use of the office of the clerk 
•f the circuit court. He is obliged to keep his office open at all reasonable hours for the accom- 
modation of the public, hence lights and fuel are necessary. The county should likewise pro- 
ride furniture, lights and fuel for the circuit court ; and the same may be supplied to the board 
)i supervisors for their convenience during their sessions. Board of Supervisors of DeKalb Co. 
f. -bridge, 16 111. R., 312. 

Neitner the state nor county is hound hy law to pay the fees of officers in prosecU- 
»ions in behalf of the people where no conviction is had ; and where the defendant is convicted, 
Ohe officers must look to the defendant's estate for their costs and run the risk of losing them if he 
be insolvent. Kiiche.ll v. Madison Co., 4 Scam. R., 163; County of Crawford v. Spenvy, 21 111. R., 
288. The statute expressly makes a county liable for costs where a judgment is rendered against 
a county. See § 34, p. 454. County of Sangamon v. Brown, 13 III. R., 207. 

After a claim against a county has heen presented to the county hoard for 
allowance, and has been passed upon by that body, the amount determined to be due declared, 
and its payment provided for in the mode prescribed by law, no action will lie against the 
county to recover the same claim, upon the ground that the decision of the board was errone- 
ous in respect to the amount due the plamtift (Seldon, J. dissenting.) Martin v. Qreene, 29 N. 
Y., (2 Tiffany), R., 645. 

Where an account consisting of a single item of $200 was presented to the county board who 
allowed thereon S100, from which order of allowance the claimant took an appeal, and after- 
wards and before the appeal was determined, he obtained a county order for the 8100 so allowed, 
and gave a receipt therefor. Held, that this was a waiver of the appeal, and amounted to a sat- 
isfaction of the claim. Pulling v. Supervisors Columbia Co., 3 Wis. R., 337. Smith, J., dissenting. 

The county hi ard, hy auditing and paying part of a claim presented, is not 
thereby precluded from contesting the residue, even upon a principle which would show the 
former allowance to have been improper. A mandamus will not lie to a board of supervisors, 
to control them in the exercise of their discretion as to the amount at which an account pre- 
sented shall be audited. People v. Supervisors, 1 Hill R., 362. An allowance of part of a claim 
by a board of supervisors imports no acknowledgment of liability of the county thereon. Peo- 
ria Co. v. Roche. 65 111., R., 77. 

In auditing claims against a county the board of supervisors act in a legislative not a Judicial 
capacity, and may repeal or reconsider its action when fouDd to be erroneous. It has power, 
therefore, to rescind a resolution auditing and allowing such a claim upon discovery of mis- 
take or error. People v. Supervisors, 65 N. Y R , 222. 

The hoard of supervisors of the county is not a court, and a petition by a creditor 
to the board, praying an allowance of a cl.\ini 13 not a suit. Qarnee v. Brunswick, 1 Hugh. R„ 270. 

Where the Board of supervisors h«,d employed a county physician and passed 



532 COUNTIES. [DIY. IX- 

Fourth — To cause to be erected, or otherwise provided, a suita- 
ble workhouse, in which persons convicted of offenses punishable 
by imprisonment in the county jail, may be confined and employed, 
and to make rules and regulations for the management thereof. 
They may contract for the use of the city workhouse when the 
same can satisfactorily be done. 

Fifth — To cause to be erected, or otherwise provided, suitable 
buildings for, and maintain, a county insane asylum, and provide 
for the management of the same. 

Sixth — To cause to be annually levied and collected taxes for 
county purposes, including all purposes for which money may be 
raised by the county by taxation, not exceeding seventy-live cents 
on the one hundred dollars' valuation, and in addition thereto an 
annual tax not exceeding one hundred cents on the one hundred 
dollars, for the purpose of paying the interest and principal of 
indebtedness which existed at the time of the adoption of the 
constitution. (1) 

Seventh — To authorize the vacation of any town plat when the 
same is not within any incorporated town, village or city, on the 
petition of two-thirds of the owners thereof. 

Eighth — To change the name of any town plat on the petition 
of a majority of the legal voters residing therein, when the inhab- 
itants thereof have not become a body corporate. [See " Pau- 
pers," § 28. E. S. 1845, p. 132, § 17, p. 133, § 25 ; L. 1859, p. 129, 
§1,2; L. 1869, p. 160, § 1, p. 104, § 2. 

Removal of obstructions from water courses.] The county 
boards of the several counties in this state shall have power to 
cause the removal of, in such manner as they may direct, the 
driftwood and other obstructions from the natural water-courses 
in their respective counties. [Act approved May 11, 1877. 

26. Duties of county board.] § 26. It shall be the duty of the 
county board of each county : 

First — To erect or otherwise provide when necessary, and the 
finances of the county will justify it, and keep in repair, a suitable 
court house, jail, and other necessary county buildings, and to 
provide proper rooms and offices for the accommodation of the 
several courts of record of the county, and for the county board, 
county clerk, county treasurer, recorder, sheriff, and the clerks of 

a resolution not to pay for medical services rendered by other physicians except in certain 
cases, appellee had been employed by the supervisor of one township as overseer of the poor, 
and told that he did not have the power to bind the county. Held, that under the statute the 
board of supervisors had power to make rules for such cases, and that the power of the over- 
Beers of the poor was limited by such rules, and that the county was not liable. County of De- 
Witt v Wright, Sup. Ct. 111., Springfield, June 20, 1879. See " Paupers," ante, p. 270. 

(1) A resolution of a board or supervisors providing for raising money to be 

paid over to the towns without any definition of purposes, and to be spent under the directiom 
of a town officer, is unauthorized and void. Attorney General v. Supervisors of Bay Co., 84 Mich. 
lw, 47, 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 533 

said courts, and to provide suitable furniture therefor. But in 
counties not under township organization, no appropriations shall 
be made for the erection of public buildings, without first submit- 
ting the proposition to a vote of the people of the county, and 
said vote shall be submitted in the same manner and under the 
same restrictions as provided for in like cases in section 27 of this 
act ; and the votes therefor shall be " For taxation," specifying the 
object, and those against shall be " Against taxation," specifying 
the object.(l) 

Second — To provide and keep in repair, when the finances of 
the county permit, suitable fire-proof safes or offices for the 
county clerk, county treasurer, recorder, sheriff and clerks of said 
courts. 

Third — To provide suitable books and stationery for the use of 
the county board, county clerk, county treasurer, recorder, sheriff, 
coroner, and the clerks of said courts.(2) 

Fourth — To cause to be published at the close of each annual, 
regular or special meeting of the board, a brief statement of the 
proceedings thereof in one or mora newspapers published in the 
county, in which shall be set forth the name of every individual 
who shall have had any account audited and allowed by said board, 
and the amount of said claim as allowed, and the amount claimed, 
and also their proceedings upon the equalization of the assessment 
roll : Provided, that no publication in a newspaper shall be re- 
quired unless the same can be done without unreasonable expense. 

Fifth — To make out at its meeting in September, annually, a full 
and accurate statement of the receipts and expenditures of the 

(1) Comity Boards have, under the statute, the sole power to determine the 
size, cost and quality of the materials of which jails should be built. People ex reL v. Board eg 
Supervisors of LaSalle Co., 84 I1L R., 303. 

(2) The law provides that the clerks of the circuit and county courts shall 

procure the proper books and stationery tor their respective offices, and it is the duty of the 
county board to provide the clerks of the circuit and county courts the necessary rooms and 
office furniture, vaults or other means for the safe keeping of the archives of the circuit and 
county clerks, and it is the duty of the county board to make allowances for the same, and for 
articles of stationery necessary for their respective courts, out of the county treasury from time 
to time. Stationery includes necessary blanks for use. It ordinarily includes all articles usu- 
ally sold by stationers. Rev. Stat., 263, 8 19, 20. Knox Co. t. Arms, 22 111. R., 175. The county 
may appoint an agent to purchase stationery for these offices, but if he fails to keep them prop- 
erly supplied the clerks may make the purchases themselves and bind the county. Mc Clauohey 
T. Hancock Co., 46 111. R., 356. 

Sheriffs are not compelled to keep their offices at the county seat as the clerks are, and there 
being no statute warranting it, they cannot be allowed pay from the county for lights and fuel 
for their offices. Armsby v. Supervisors of Warren Co., 20 111. R., 126. On the subject of sheriff's 
fees for mileage In serving grand juries, see Bryner v. Board of Supervisors, 24 111. R., 195. . 

It is held in Wisconsin, Jefferson Co. v. Besley, 5 Wis. R.. 134, that the necessary lights and fuel 
for keeping of the several county offices in a suitable condition for the transaction of business, 
are a proper county charge ; but this applies only to those officers who are entitled by law to keep 
their offices open for the accommodation of the public. Board of Supervisors of BeKaJb Go. ▼. 
Beveridge, 16 111. R., 312. Under this construction sheriffs would no doubt be allowed for neo- 
cessary fuel and lights for the county jail. Opinion Att'y Gen. Co-ville, Minn., July 7, 1867. 

The expense of Keeping property of a county in repair, is a proper subject of 
charge against the county, as, also the expense of cleaning and painting court rooms. And It 
Is held in New York that an allowance of the account is final and conclusive as regards amount. 
People v. Stout, 23 Barb. R.. 349. 



534 COUNTIES. [DIV. IX. 

preceding year, which statement shall contain a full and correct 
description of each item, from whom and on what account re- 
ceived, to whom paid, and on what account expended, together 
with an accurate statement of the finances of the county at the 
end of the fiscal year, including all debts and liabilities of every 
description, and the assets and other means to discharge the same ; 
and within thirty days thereafter to cause the same to be posted 
up at the court house door, and at two other places in the county, 
and published for one week in some newspaper therein, if there 
is one, and the same can be done without unreasonable expense. 
[E. S. 1845, p. 134, § 34, 35 ; p. 135, § 41 ; p. 136, § 44, 45; L. 1845, 
p. 573, § 1. 

27. Raising tax in addition to constitutional limit.] § 27. 
Whenever the county board shall deem it necessary to assess 
taxes, the aggregate of which shall exceed the rate of seventy-five 
cents per hundred dollars' valuation of the property of the county, 
except where such excess is used for the payment of indebtedness 
existing at the adoption of the constitution, the county board may, 
by an order entered of record, set forth substantially the amount 
of such excess required, and the purpose for which the same will 
be required, and if for the payment of interest or principal, or 
both, upon bonds, shall in a general way designate the bonds and 
specify the number of years such excess will be required to be lev- 
ied, and provide for the submission of the question of assessing 
the additional rate required to a vote of the people of the county 
at the next election for county officers after the adoption of the 
resolution ; and it shall be the duty of the county clerk in his elec- 
tion notice to give notice of such submission. The votes therefor 
shall be, "For additional tax," and those against shall be 
"Against additional tax." The votes shall be canvassed and 
returned the same as those for county officers, and if a majority of 
the votes cast upon the question are " For additional tax," then the 
county board shall have power to cause such additional tax to be 
levied and collected in accordance with the terms of such resolution, 
and the money so collected shall be kept as a separate fund and dis- 
bursed only for the purposes for which the same was raised : Provi- 
ded^ any Surplus that may remain after the payment of all demands 
against said fund may be used for other purposes. (1) [See § 72 ; 
Const., art. 9, § 8, p. 75. 

28. Issuing bonds and raising tax may be included.] § 28. 

If it shall be deemed necessary to submit to a vote of the people 
at the same election the question of issuing bonds and the raising of 

n.) On the subject of taxation oy county authorities the Constitution declares Art 
9, Sec. 8, county authorities shall never assess taxes, the aggregate of which shall exceed seven- 
$ 6ve cents per one hundred dollars valuation, except for the payment of indebtedness exist 
mg at the adoption of this constitution, unless authorized by a vote of the people of the county 



JTV. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 535 

such additional tax, the same maybe included in one proceeding, and 
in that case the votes in favor of issuing such bonds and levying 
euoh additional tax shall be " For bonds and additional tax," and 
those against shall be, "Against bonds and additional tax." 

29. Former deeds, etc., confirmed.] § 29. All deeds, grants and 
conveyances heretofore made, and duly acknowledged and recorded 
as other deeds, conveying any lands, tenements or heriditaments 
to any county or to the inhabitants of any county, or to the county 
commissioners, county commissioners' court, county court, board 
of supervisors, or to the governor, or any other officer or person 
or persons, by whatever form of conveyance, for the use and ben- 
efit of any county, shall be good and valid, to all intents and pur- 
poses, to vest in such county, in fee simple or otherwise, all such 
right, title, interest and estate as the grantor or grantors in any 
such deed or conveyances had, at the time of the execution thereof, 
in the land conveyed and intended thereby to be conveyed. R. S. 
1845, p. 132, § 14. 

30. Contracts, etc.— Rights of county— Suits.] § 30. All notes, 
bonds, bills, contracts, covenants, agreements or writings, made 
or to be made, whereby any person is or shall be bound to the 
People of the State of Illinois, or to any county or the inhab- 
itants thereof, or to the county commissioners, county commission- 
ers' court, or county court, or the board of supervisors, or to 
the governor, or any other officer or person, in whatever form, for 
the payment of money, or any debt or duty, or the performance of 
any matter or thing to or for the use of any county, shall be as valid 
and effectual, to all intents and purposes, to vest in said county all 
the rights, interest and actions which would be vested in any 
individual, if any such contract had been made directly to him. 
Suits may be commenced, sued and prosecuted thereon in the 
name of said county, as is provided herein, or in the name of the 
officer or person to whom they are made, to the use of the county, 
as fully and effectually, to all intents and purposes, as any person 
may or can upon like notes, bills, bonds, contracts, agreements or 
writings made to him. [R. S. 1845, p. 132, § 16. 

31. Tenue of suits by or against county.] § 31. All actions, 
local or transitory, against any county, may be commenced and 
prosecuted to final judgment in the circuit court, or any court of 
general jurisdiction in the county against which the action is 
brought. Any action, local or transitory, in which any county 
shall be plaintiff, may be commenced and prosecuted to final 
judgment in the county in which the defendant in such action 
resides. [R. S. 1845, p. 132, § 18, 

32. Jurors and witnesses.] § 32. In all actions brought by 
or against any county, the inhabitants of the county so suing or 



536 COUNTIES. [DIV. IX. 

being sued may be jurors or witnesses, if otherwise competent 
or qualified according to law. [E. S. 1845, p. 132, § 18. 
3U. Duty of county board to prosecute and defend suit.] § 33. 

It shall be the duty of the county boards of each of the counties 
of this state to take and order suitable and proper measures for 
the prosecuting and defending of all suits to be brought by or 
against their respective counties, and all suits which it may be- 
come necessary to prosecute or defend to enforce the collection 
of all taxes charged on the state assessment. [E. S. 1845, p. 
133, § 19. 

34. How judgment against county paid.] § 34. Execution 
shall not, in any case, issue against the lands or other prop- 
erty of a county; but when judgment is rendered against a 
county the county board shall direct an order to be drawn on 
the county treasurer for the amount of the judgment and costs 
— which order shall be paid as other county debts. [E. S. 1845, 
p. 133, § 20. 

35. Auditing claims against county— Appeal.] § 35. Be ore 
any claim against a county is audited and allowed, the claimant 
or his agent shall verify the same by his affidavit, stating that 
the several items therein mentioned are just and true, and the 
services charged therein, or articles furnished, as the case may 
be, were rendered or furnished as therein charged, and that the 
amount claimed is due and unpaid after allowing all just credits. 
And when the claim of any person against a county is disallowed, 
in whole or in part, by the county board, and the nature of the 
claim is not such that the allowance is discretionary with the 
county board, such person may appeal from the decision of such 
board to the circuit court of the same county, upon filing bond 
with the clerk of such court within twenty days after the rendi- 
tion of the decision, with such security as shall be approved by 
such clerk, in the penal sum of $250, payable to the People of 
the State of Illinois, for the use of such county, conditioned $kat 
he will prosecute the appeal with effect, and pay all costs that 
may be adjudged against him.(l) [L. 1851, p. 193, § 1. 

(1) An appeal may he taken from the decision of the hoard of supervisors in 

regard to the allowance of an account. See Knox Co. t. Arms, 22 111. R., 175. This case was an 
appeal from the board of supervisors. 

If a claim for services rendered to the poor of a county or township, be disallowed by the 
county board, in whole or in part, the claimant may appeal, or, at his option, bring an action 
against the county. So held in Indiana. Bartholomew v. Wright, 12 Ind. R., 187. 

Form of Affidavit of Correctness of Claim. 

State of Illinois, \ 

County, / ss - 

A. B., being duly sworn, on oath, deposes and says that the several 

items mentioned in the annexed claim of , against county, 

are just and true, and the services charged therein [or articles fur- 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 537 

36. Summons.] § 36. Upon such bond being filed with the 
said clerk, he shall issue a summons against the county board, 
in like form, as near as may be, as in cases of appeals from jus- 
tices of the peace, which shall be served as other summons 
against a county. 

37. Transcript— Filing same,] § 37. The county clerk shall, 
within ten days after the service of such summons, make out a 
certified copy of the decision, appealed from, and transmit the 
same, together with all the papers in his possession appertain- 
ing to such decision, to the clerk of the circuit court, Avho shall 
file the same in his office and docket the case as in other cases 
of appeals. [L. 1851, p. 193, § 2. 

38. Time of fixing compensation of county officers.] § 38. 
The time of fixing the compensation of county officers whose 
compensation is to be fixed by the county board, shall be at the 
meeting of such board next before the regular election of the 
officers whose compensation is to be fixed; but in case where 
such compensation is not fixed, the board shall proceed, at the 
next regular or special meeting held thereafter, to fix such com- 
pensation. (1) [See Const., art. 10, § 10, p. 77. 

nished] were rendered [or furnished] as therein charged and stated, 
and that the amount claimed is due and unpaid after allowing all just 
credits. 

Subscribed and sworn to before me this ) A. B. 

day of , A. D. 18—. 

C. D., J. P. 

Form of Appeal Bond to Circuit Court in Appeal from Decision of 

County Board 

Know all men by these presents, that A. B. and C. D. are held and 

firmly bound unto the People of the State of Illinois, for the use of 

county, in the penal sum of two hundred and fifty dollars, lawful money 
of the United States of America, for the payment of which well and 
truly to be made we bind ourselves, our heirs, executors and administra- 
tors, jointly and severally, firmly by these presents. 

Witness our hands and seals this day of , A. D. 18 — . 

The condition of this obligation is such, that whereas on the day 

of , A. D. 18 — , the above bounden A. B. presented a claim for al- 
lowance, duly verified, in favor of and against the county of 

to the county board of said county, the allowance of which was not dis- 
cretionary with said county board; and which claim the said county 
board of said county disallowed in whole [or in part], from which decision 
the said A. B. has taken an appeal to the circuit court of the county of 

aforesaid. Now, if the said A. B. will prosecute his said appeal 

with effect and pay all costs that may be adjudged against him, then this 
obligation to be void, otherwise to remain in full force and effect. 

Bond and security approved by me this day 1 A. B., [seal.] 

of ,18—. J. K., \ CD., [SEAL.] 

Clerk Circuit Court of county. J 

m On the subject of fixing the compensation of county- officers, the constitution 
declares, Art. 10, Sec. 10: The county board, except as provided in section 9 of this article, [Cook 



D 



538 COUNTIES. [DIV. IX. 

39. Funds kept separate.] § 39. Whenever a tax is levied for 

the payment of a specific debt, the amount of such tax collected 
shall be kept as a separate fund in the county treasury, and ex- 
pended only in the liquidation of such indebtedness. Provided, 
that any surplus remaining in the treasury after full payment of 
such indebtedness, shall be transferred to the common fund of 
the county. [L. 1863, p. 41, § 1. 

40. Issuing county bonds.] § 40. When the county board of 
any county shall deem it necessary to issue county bonds to en- 
able them to perform any of the duties imposed upon them by 
law, they may, by an order, entered of record, specifying the 
amount of bonds required, and the object for which they are to 
be issued, submit to the legal voters of their county, at any gen- 
eral election, the question of issuing such county bonds. The 
amount of the bonds so issued shall not exceed, including the 
then existing indebtedness of the county, five per centum on the 
value of such taxable property of such county, as ascertained by 
the assessment for the state and county tax for the preceding 
year. Said vote shall be by ballot, on which shall be written or 
printed "For county bonds," or "Against county bonds," and if 
a majority of the votes at such election on that question shall be 
"For county bonds," such county board shall be authorized to 
issue such bonds of not less than twenty-five dollars ($25), nor 

county] shall fix the compensation of all county officers, with the amount of their necessary 
clerk hire, stationery, fuel and other expenses, and in all cases where fees are provided for, said 
compensation shall be paid only out of, and shall in no instance exceed, the fees actually col- 
lected ; they shall not allow either of them more per annum than 81,500, in counties not exceed- 
ing 20,000 inhabitants; $2,000 in counties containing 20,000 and not exceeding 30,000 inhabitants; 
$2,500 in counties containing 30,000 and not exceeding 50,000 inhabitants; $3,000 in counties con- 
taining 50,000 and not exceeding 70,000 inhabitants; $3,500 in counties containing 70,000 and not 
exceeding 100,000 inhabitants ; and $4,000 in counties containing over 100,000 and not exceeding 
250,000 inhabitants ; and not more than $1,000 additional compensation for each additional 100,- 
000 inhabitants : Provided, that the compensation of no officer shall be increased or diminished 
during his term of office. All fees or allowances by them received, in excess of their said com- 
pensation, shall be paid into the county treasury. 

The word compensation, as used in the constitution, § 10, Art. 10, and of the 
statute enacted to carry the same into effect, refers only to the compensation of the officer for 
his personal services, and does not embrace the allowance which may be made for necessary 
clerk hire, stationery, fuel, etc. There is no limitation imposed by the constitution upon the 
power of the county board to change, from time to time, during the term of the county officer, 
the amount allowed for these latter purposes as circumstances may show to be necessary. 
Opinion Att'y Gen. Edsall, Jan. 22, 1878. 

Where the county board fails to fix the compensation of the county clerk, 
elected after the adoption of the constitution of 1870, he is not entitled to appropriate any of the 
fees of his office to his own use until the amount of his compensation is fixed. And where the 
board has once acted, and fixed the compensation of the county clerk, that compensation can- 
not be increased or diminished during his term. PurceU v. Parks, 82 111. R., 346. 

The words " county board," as used in the constitution, and required to fix the 
compensation of county officers, means the body of persons to whom is intrusted the transac- 
tion of county business, and the term embraces as well county courts, as board of supervisors 
and courts of county commissioners. Hughes et al, v. The People, use, etc., 82 111. R., 78. 

The county board has power to increase the allowance made to the county 
clerk for clerk hire at any time during his term of office, in case they find the allowance al- 
ready made is insufficient. Where one county board has made a settlement with the county 
clerk as to the amount he is to receive for clerk hire for past services, I think such settlement is 
binding upon their successor. The clerk's own compensation cannot be changed during his 
term of office. Opinion Att'y Gen. Edsall, Aug. 6, 1877. 



DIV. IX.] 



COUNTY COMMISSIONERS. 



539 



more than one thousand dollars ($1,000) each, payable respec- 
tively, in not less than one, nor more than twenty years, with in- 
terest, payable annually or semi-annually, at the rate of not more 
than eight per cent, per annum. [As amended, 1879. 

41. Neglect of duty.] § 41. If any member of the county 
board of any county in this state shall willfully neglect to per- 
form any of the duties which are or shall be required of him by 
law, as a member of the county board, he shall, for every such 
offense, forfeit the sum of $200, to be recovered in an action of 
debt, before anv justice of the peace of the county. (1) [See Kev. 
Stat., ch. 38, § 208 ; Kev. Stat., ch. 102, § 1, 4; L. 1861, p. 238, § 19. 

PROVISIONS SPECIALLY APPLICABLE TO THE BOARD OF COUNTY COM- 
MISSIONERS IN COUNTIES NOT UNDEB TOWNSHIP ORGANIZATION. 

42. Commission — Oath. 

43. Meetings. 

44. Chairman. 

45. Quorum— Chairman pro tern. 

46. County board successor to county clerk. 

47. Supervision of highways, etc 

48. Administering oaths. 

49. Acts legalized. 

42. Commission — Oath.] § 42. Each member of the board of 
county commissioners shall be commissioned by the governor, 
and shall, before entering upon the duties of his office, take and 
subscribe the following oath, which shall be filed in the office of 
the county clerk: 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 
Illinois, and that I will faithfully discharge the duties of the office of county 
commissioner of county, according to the best of my ability. 

43. Meetings.] § 43. The board of county commissioners 
shall hold regular sessions for the transaction of the business of 
the county, on the first Mondays of December, March, June and 
September, the third Monday of July of each year, and at such 
other times as may be provided by law, and may hold special 
sessions on the call of the chairman or any two members of said 
board, whenever the business of the county requires it. 

44. Chairman.] At the session of said commissioners in De- 
cember of each year, they shall elect one of their number chair- 



(1) Municipal corporations, such as counties, being created for governmental pur- 
poses, where they exercise the functions of subscribing in ai a of railways under statutes, the 
power to do so, must be clearly conferred, but strictly pursued. Harding v. Rockford, R. I. dtSL 
L. Co.ct aL, 65 111. R., 90. 



540 COUNTIES. [DIT. EL. 

man for the ensuing year, who shall preside at their sessions and 
perform such duties as are or may be prescribed by law or by the 
order of said board. 

45. Quorum — Chairman pro tern.] § 45. A majority of the 
members of said board shall constitute a quorum to do business, 
and, in the absence of the chairman, a chairman pro tern, may be 
appointed. 

46. County board successor to county court,] § 46. The board 
of county commissioners shall be the successor of the county 
court in relation to all matters concerning county affairs, and 
where, in any county not under township organization, the county 
court is authorizeed to do any act or make any contract on be- 
half of the county, such authority shall be vested in said board. 

47. Supervision of highways, etc.] § 47. Such board shall 
have general supervision of all highways, roads and bridges in 
the county, including state roads. 

48. Administering oaths.] § 48. The chairman or any mem- 
ber of the board of county commissioners may administer oaths 
to persons, concerning any matter submitted to the board, or con- 
nected with their powers or duties. 

49. Acts legalized.] § 48^. All acts heretofore done by boards 
of county commissioners, which might have been done by county 
courts in counties in which the said courts have not continued to 
do the business of said counties, are hereby legalized. 

PROVISIONS SPECIALLY APPLICABLE TO THE BOARD OF SUPERVISORS IN 
COUNTIES UNDER TOWNSHIP ORGANIZATION. 

50. Annual and regular meetings. 

51. Special meetings. 

62. Organization of county board. 

53. Certificate of election. 

54. Quorum — Majority vote. 

55. Open doors. 

56. Administering oaths. 

57. Appropriations for roads and bridges. 

58. Boundaries of towns — New towns, etc 

59. Naming towns. 

50. Annual and regular meetings.] §49. The annual meeting 
of the board of supervisors shall be holden on the second Tues- 
day of September in each and every year, at the county seat ; 
and if the court house be convenient, shall be held therein. A 
regular meeting of the board shall be held on the second Mon- 
day of July of each and every year, at the county seat, and at 
such other times as may be prescribed by law. [L. 1861, p. 
236, § 3. 



D1V. 15. J BOARD OF SUPERVISORS. 541 

51. Special meetings.] § 50. Special meetings of the board of 
supervisors shall be held only when requested by at least one- 
third of the members of the board, which request shall be in 
writing, addressed to the clerk of the board, and specifying the 
time and place of such meeting, upon reception of which the 
clerk shall immediately transmit notice, in writing, of such meet- 
ing, to each of the members of the board. The clerk shall also 
cause notice of such meeting to be published in some newspaper 
printed in the county, if any there be. [L. 1861, p. 236, § 2. 

52. Organization of county board.] § 51. The board of super- 
visors, at their first meeting in every year, shall organize by 
choosing one of their members as chairman, who shall preside 
at all meetings of the board during the year. In case of his 
absence at any meeting, the members present shall choose one 
of their number as temporary chairman.(l) [L. 1861, p. 236, § 4 

53. Certificates of election.] § 52. The supervisors shall sev- 
erally lay before the board, at the first meeting after the election, 
their several certificates of election, which shall be examined by 
the board, and if found regular, shall be filed in the office of the 
county clerk. [L. 1861, p. 236, § 5. 

(1) The board of supervisors have no power to perform official acts except as 
a board. County Com'rs Randolph Co. v. Jones, BreesB R., 237 ; Lynch y. HartweU, 8 Johns R., 
422. When acting as a board in the line of their duty, the county is bound by their acts. Ver- 
milion Co. v. Knight, 1 Scam. R., 97. 

Organization of the hoard, and business. — The board of supervisors may elect a 
temporary chairman, whether there is a regular chairman in existence or not, and any meeting 
of the board at which a quorum is present must be regarded as valid. Town of Ottawa v. County 
of LaSaUe, 11 111. R., 654. That is if regularly called in pursuance of law. The board of super- 
visors is intended to be organized as a deliberative body. In the absence of any special rules 
which they may adopt for their government, tbey will be governed by the general rules of par- 
liamentary law. See post, appendix. Like all other bodies of the kind, they should perform 
their work through the aid of committees. The chairman or presiding officer appoints all com- 
mittees, unless the assembly directs otherwise. Committees should consist of odd numbers, as 
three, five, seven, or more. Committees are appointed with reference to the subjects of which 
the assembly has cognizance. 

The standing committees of a board of supervisors are usually the following: 
Accounts; equalization of assessment; education; finance; jury list; poor and poor farm; pub- 
lic buildings ; refunding taxes ; roads and bridges. 

The first member named on a committee is the chairman, whose duty it is to regulate and 
preside at their meetings, and make a report of their conclusions. 

Select committees are sometimes appointed to consider a particular subject, where it 
la desired to give it special attention. It is the rule that the person moving a select committee 
should be first named as a member of it 

The report of a committee embodies their conclusions concerning the subject re- 
ferred. It may be verbal or written. The formal words of a written report are as follows: 

Form of Report of Committee, 

The committee on accounts [or, as the case may be,] to whom was re- 
ferred the matter of [state the matter referred] have had the same under 
consideration, and beg leave to report that [here set forth the conclusions 
of the committee']. 

All of which is respectfully submitted. 

The report may be signed by the chairman, under the direction of the committee, or by the 
members individually. All the members of a committee should have notice of their meeting, 
after which a majority may act and report. 

When a report is made there are two questions upon it: 1. Its acceptance. 2. Its adoption 
A report is presumed to be accepted, and no motion to that effect is necessary. The question 
■hould be on its adoption. Concerning general parliamentary rules, see post, appendix. 



542 COUNTIES. [DIV. IX. 

54. Quorum— Majority vote.] § 53. A majority of the super- 
visors of any county shall constitute a quorum for the transact 
tion of.tmsiness; and all questions which shall arise at meet- 
ings shall be determined by the votes of the majority of the 
supervisors present, except in such cases as is otherwise pro- 
vided. [L. 1861, p. 237, § 7. 

55. Open doors.] § 54. The board of supervisors shall sit 
with open doors, and all persons may attend their meetings. 
[L. 1861, p. 237, § 8. 

56. Administering oaths.] § 55. Every chairman of said 
board shall have power to administer an oath to any person, con- 
cerning any matters submitted to the board or connected with 
their powers and duties. [L. 1861, p. 237, § 9. 

57. Appropriations for roads and bridges.] § 56. Said board 
shall have power to appropriate funds to aid in the construction 
of roads and bridges in any part of the county, whenever a 
majority of the whole board of the county may deem it proper 
and expedient. [See "Roads and Bridges," § 110, ante p. 191. L- 
1861, p. 236, § 6, part 4. 

58. Boundaries of towns— New towns, etc.] § 57. Sail board 
shall also have power to change the boundaries of towns, and to 
create new towns in their respective counties, in manner pro- 
vided by law ; to designate and give names thereto, and to fix 
the place of holding the first town meeting therein. (1) [See 
"Township Organization Act," art 3. L. 1861, p. 236, § 6, 
part 5. 

59. Naming towns.] § 58. Whenever the board of supervisors 
shall create a new town, or change the name of an existing town, 
the proceedings in giving a name to such new town, or changing 
the name of an existing town, shall be as follows: The proposed 
name to be given to such new town, or existing town, shall be filed 
in the office of the auditor of public accounts, there to be retained 
for at least one year ; and the auditor of public accounts, at any 
time after the filing of such proposed name, shall, upon applica- 
tion of said board, grant his certificate stating that such proposed 
name, from information appearing in his office, has not been 
adopted by any city, town, village or municipal corporation in 
this state ; which certificate must be obtained by said board be- 
fore any action whatever shall be taken by said board toward 
making such change of name ; and all proceedings instituted in 
any court or other place, under a name changed, without comply- 
ing with the provisions of this section, shall be held to be void and 

(1) The manner provided for changing the boundaries of towns and creating 
new towns, will be found, ante p. 41, Art. 8, sec. 1. 



DIY. IX.] 



COMMISSIONERS OF COOK COUNTY. 



543 



of no effect If such name has been adopted elsewhere in this 
state, the auditor of public accounts shall so notify the board, 
whereupon another name shall be filed in his office, which shall 
there remain in like manner as hereinbefore provided, and the 
certificate shall be issued by the auditor of public accounts im- 
mediately after such filing, stating that such name has not been 
elsewhere adopted ; whereupon said board may proceed to make 
such change of name, and not before ; and all proceedings pend- 
ing, and all rights and privileges acquired in the name of such 
town, by such town, or by any person residing therein, shall be 
secured to such town or person, and such proceedings continued 
to final consummation in such name, the same as though the same- 
had not been changed. [L. 1861, p. 238, § 1G. 

APPROVAL OP OFFICIAL BONDS. 

60. Committee to approve official bonds.] I 1. That "in 
all cases where official bonds are required by law to be approved by the 
board of supervisors, in counties under township organization, such 
board may select a committee for that purpose, which committee shall 
have full power and authority to act, and its acts have the same force 
and effect as if done by the board in session." [Act of June 17, 1887.] 

CLASSIFICATION OF COUNTIES. 

[The act to classify counties and regulate fees and salaries contains the fol- 
lowing provisions:] 



13. Counties classified.] § 13. That for the purpose of fixing 
the fees and compensation of county and township officers in this 
state, the several counties therein are hereby divided into three 
classes according to populatien as ascertained by the Federal 
census of the year 1870, which classes shall be known as the 
first, second and third, as follows : 

Counties containing a population of not exceeding twenty 
thousand inhabitants, to-wit : The counties of Alexander, Bond, 
Boone, Brown, Calhoun, Carroll, Cass, Clark, Clay, Clinton, 
Crawford, Cumberland, DeWitt, Douglas, DuPage, Edwards, 
Effingham, Fayette, Ford, Franklin, Gallatin, Grundy, Hamilton, 
Hardin, Henderson, Jackson, Jasper, Jefferson, Jersey, Johnson, 
Kendall, Lawrence, Marshall, Mason, Massac, Menard, Mercer, 
Monroe, Moultrie, Perry, Piatt, Pope, Pulaski, Putnam, Kich- 
land, Saline, Schuyler, Scott, Stark, Union, Wabash, Washington, 
Wayne, White, Williamson and Woodford, shall belong to and 
be known as counties of the first class. 

Counties containing a population over twenty thousand and not 



544 COUNTIES. [DIV. IX. 

exceeding seventy thousand; to-wit : Adams, Bureau, Champaign, 
Christian, Coles, DeKalb, Edgar, Fulton, Greene, Hancock, Henry, 
Iroquois, JoDavies, Kane, Kankakee, Knox, Lake, LaSalle, Lee, 
Livingston, Logan, Macon, Macoupin, Madison, Marion, McDon- 
ough, McHenry, McLean, Montgomery, Morgan, Ogle, Peoria, 
Pike, Randolph, Rock Island, Sangamon, Shelby, St. Clair, 
Stephenson, Tazewell, Vermilion, Warren, Whiteside, Will and 
\Yinnebago, shall belong to and be known as counties of the sec- 
ond class. 

Counties containing a population exceeding seventy thousand 
inhabitants, to-wit : The county of Cook shall belong to and be 
known as counties of the third class. The fees and compensation 
of the several officers hereinafter named, shall be as follows in 
the respective classes of counties to which they belong. [As 
amended, 1879. 



COUNTY CLERKS. 

elation to countv clerks. lAppn 
July 1, 1874. Rev. Slat., ch. 35.J 



A.N ACT to revise the law in relation to county clerks. I Approved March 24, 1874. In forc« 
July 1, 1874. Rev. Stat., ch. 35./ 
Section. 

1. Oath. 

2. Bod d— Form. 

3. Commission. 

4. Office at court house, eta 

5. Seal. 

6. Deputies. 

7. Principal clerk responsible, 

8. Pro tern, clerk in case of vacancy. 

9. Custody of records. 
10. General duties: 

1. Oath.] § 1. That each county clerk, before entering upon 
the duties of his office, shall take and subscribe the following oath, 
which shall be entered at large upon the records of his office : 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 
Illinois, and that I will faithfully discharge the duties of the office of 
county clerk of county, according to the best of my ability. 

[L. 1849, p. 63, § 8. 

2. Bond — Form. § 2. Each county clerk shall, before entering 
upon the duties of his office, give bond in such penalty and with 
such security as the county board shall deem sufficient, which 
bond shall be substantially in the following form, and shall be 
recorded at large upon the records of his office, and when so 
recorded shall be deposited with the clerk of the circuit court for 
safe keeping : 

Know all men by these presents, that we, (A B,) principal, and (C D) 
" (E F,) sureties, all of the county of and state of Illinois, arc 



COUNTIES. 5 ^ 5 



heid and firmly bound to the People of the State of Illinois, in the penal 

sum of dollars, for the payment of which, well and truly to be 

made, we bind ourselves, each of us, our heirs, executors and adminis- 
trators firmly by these presents. Signed with our hands and sealed with 
our seals. 
Dated at , the day of , 18—. 

The condition of the above bond is such, that if the above bounden (A 
B) shall perforin all the duties which are or may be required by law to be 

performed by him as county clerk of said county of , in the time 

and manner prescribed or to be prescribed by law, and when he shall be 
succeeded in office, shall surrender and deliver over to his successor in 
office all books, papers, moneys and other things belonging to said county, 
and appertaining to his said office, then the above bond to be void : other- 
wise to remain in full force. 

Signed, sealed and delivered in the presence of (Q H.) 

A B, [seal.] 

C D, [SEA'-.] 

E F, [seal.] 

3. Commission,] § 3. County clerks shall be commissioned 
by the governor. 

4. Office at court house.] § 4. The county clerk shall keep his 
office at the court house of his county, or at such other place as 
may be provided for him by the authorities of such county at the 
county seat. [L. 1849, p. 63, § 8. 

5. Seal.] § 5. He shall be keeper of the seal of the county, 
which shall be used by him in all cases where he is required to 
use an official seal. [L. 1849, p. 63, § 5. 

6. Deputies.] § 6. He may appoint deputies, who shall take 
and subscribe the same oath for the discharge of their duties as 
is required of him, which shall be entered of record in his office 
[L. 1853, p. 257, § 1 ; E. S. 1845, p. 395, § 6. 

7. Principal clerk responsible.] § 7. The principal clerk shaD 
in all cases be responsible for the acts of his deputies. [R. S. 
1845, p. 395, § 7. 

8. Pro tern, clerk in case of vacancy.] § 8. Whenever a va- 
cancy occurs in the office of any county clerk and the unexpired 
term exceeds one year, the county board of the county shall im- 
mediately appoint a clerk pro tempore, who shall qualify by giving 
bond and taking the oath as required of the county clerk, and 
shall thereupon perform all the duties and be entitled to all the 
emoluments and be subject to all the penalties appertaining to the 
office of county clerk until the successor of such clerk is elected 
or appointed and qualified. [See " Elections," § 133. L. 1849, 
p. 64, § 10. 

9. Custody of records.] § 9. The county clerk shall have the 
care and custody of all the records, books and papers appertain- 



546 COUNTY CLERKS. 



ing to and filed or deposited in their respective offices, and the 
same shall be open to the inspection of all persons without re- 
ward. [L. 1861, p. 238, § 12. 

10. General duties.] § 10. The duties of the county clerk 
shall be — 

1st. To act as clerk of the county board of his county and to 
keep an accurate record of the proceedings of said board, file and 
preserve all bills of account acted upon by the board, and when 
any account is allowed or disallowed, he shall note that fact 
thereon, and when a part of any account is allowed he shall note 
particularly the items allowed. 

2d. To keep a book in which he shall enter the number, date 
and amount of each order upon the county treasurer, and the 
name of the person in whose favor the same is drawn, and when 
such order is canceled, he shall note the date of cancellation 
opposite such entry.(l) 

3d. Before any such order is delivered to the person for whose 
benefit it is drawn, the county clerk shall present the same to the 
county treasurer, who shall personally countersign the same. 

4th. To keep a book, in which shall be entered in alphabetical 
order, by name of the principal, a minute of all official bonds filed 
in his office, giving the name of the office, amount and date of 
bond, names of sureties and date of filing, with such reference to 
the number or other designation of the bond, that the same may 
be easily found. 

5th. To keep proper alphabetical indexes of all records and 
papers in his office. 

6th. To give any person requiring the same, and paying the 
lawful fees therefor, a copy of any record, paper or account in his 
office. 

7th. Such other duties as are or may be required by law. 

|;L. 1861, p. 237, § 10; p. 238, § 13. E. S. 1845, p. 136, § 46. 

(1) A county order is properly executed when signed oy the clerk and counter- 
signed by the treasurer of the county. No seal of office is required, and the mere fact that such 
order is issued and delivered in another county will not render it illegal Board of tiupervisori, 
etc., ▼. Lawrence, 63 I1L R , 32. 



APPENDIX 



NOTE 
The 39th general assembly, by an act entitled < 'An act in relation to 
domestic animals running at large," approved June 21, 1895, having 
repealed all the statutes that previously, in this work, constituted Divis- 
ion X, entitled ' ' Animals, " and the shorter division of that title having 
been transferred to pp. 460-466, the pages of this appendix remain 
numbered as heretofore, beginning with 561 and concluding with 622. 



GENERAL NOTES. 



TOWNS. 



The word "town," as found in our statute, is not always used in the same sense. Under the 
township system, a town is a species of municipal incorporation, and constitutes an integral part 
of a county, and such towns are clearly interwoven in the management of county affairs, and 
generally embrace a township according to government survey. The word, as used in the Rev. 
tot at. of 1845, referred to a different kind of incorporation; such an organization was formerly 
always called an "incorporated town," while in our later statutes they are frequently called "vil- 
lages'" but mean the same thing. Martin v. The People, 87 111. R., 524. 

The words "town meeting" as used in the Township law refer to the annual meetings of the 
r'ectors of the town for the transaction ol town business. Such meetings are clearly distinguish- 
able from "elections" when there is no other business transacted but to elect officers. C- & J. R. 
R. Co. v. Malloi-y, 101 111. R., 5s3. Towns at their annual town meetings may provide for the insti- 
tution and defense of suits in which the town is interested, and a contract b*tween the supervisor 
and an attorney, for that purpose, in pursuance of a resolution adopted at town meeting, will be 
ouforced. Town of Mt. Vernon v. Pattun, 94 R., 111. 65. 

The supervisor and town clerk, neither separately nor conjointly, are the corporate authority 
of their town. They are simply town officers, with limited duties to perform in respect of town 
affairs. They have no authority to make corporate subscriptions to railroads or issue bonds, ex- 
cept as they are authorized by the electors of the town. Wi/'iams v. Toion of Roberts, 88 111. R., 
11. Towns have no power to issue bonds to aid in the building of a railroad unless specially au- 
thorized by statute. Welch v. Pusi, 99 III. R., 471. 

Where town auditors allow claims against a town, and they are certified and presented to the 
voters at town meeting and approved by them, it will be presumed there was no fraud in allowing 
f he claims, and a tax levied to pay the same will not be enjoined, although some of the claims may 
kave been illegal, if the tax is not in excess of that authorized to be levied and collected. Town 
of Lernont v. .sinner & T'tlcott Stone Co., 98 111. It., 94. The granting of certificates by town auditors 
for road indebtedness, drawing interest, and afterwards taking them up, adding interest to principal 
end giving new certificates for the whole amount, drawing interest, is illegal, but it does not prove 
trnad so as to authorize a court to enjoin a tax levied to pay such certificates. Town of Lemont v. 
Singer & Talcott Stone Co., 9S 111. R., 94. A judgment against a town is a town charge, and the 
board ol town auditors should audit and certify the amount necessary to satisfy the same, and if 
they refuse, they will be compelled to do so by mandamus. Town of Lyons v. Cooledge, 89 111. R., 
629. 

DRAINS AND DITCHES. 

8ection fourteen of the Drainage act, which provides that the commissioners shall assess to 
eneh tract of land its proportionate share of the entire cost of the work, does not require that a 
tract of land shall be divided into the smallest legal subdivisions in making the assessments, 
»^it the more reasonable rule is, that two or more tracts disconnected shall not be valued ana 
•wsessed together. The assessment of a tract of 420 acres, all situated in one section, and in one 
b<ody, and levying a gross sum upon the whole, was held no ground for defeating judgment on 
iie assessment. A second special assessment by the commissioners of a drainage district is not 

* oid merely because the record of their proceedings fails to show for what purpose it was made. 
*. second assessment is allowed where the first one proves inadequate to complete the work 
proposed, or when necessary for maintenance or repairs. An objection to a second assessment, 

• u the ground that it was not made for a proper purpose, should be made before the commis- 
sioners at their meeting to confirm the assessment. In making assessments under the drainage 
law, it is the duty of the commissioners to determine what property will be benefited by the 

Eroposed work, and what will not, and their determination, when called in question for the 
rst time on application lor judgment against the land assessed, in the absence of fraud, must 
be held conclusive. The remedy of one aggrieved by an assessment is to object to confirmation 
of the assessment, and if relief is denied, to appeal. 'The sections of Art. IX of the constitution 
relating to uniformity in taxation, have no bearing on special assessments. Moore r. The People, 
106 111. R. 376. 

FENCES. 

The section of the statute requiring fences to be of a certain height has been held to have ref- 
erence solely to partition fences bet we n adjoining owners, and to have no application to an out- 
Bide fence. Scott v. Wirshing, 61 111. R. 102; Scott v. Buck, 85 111. R., 331, Evidence that a party, 
at the request of another, repaired a fence made by the latter as a division fence., and had froio 
time to time put boards upon it to the amount of about half the fence, is competent to be consid- 
ered by the jury, upon the question whether there was a division fence. McNally v. O'Brien, 88 
HI. R. , 237. 



564 GENERAL NOTES. 



REVENUE. 

Exemptions from taxtion are to be strictly construed. The People v. Seaman's Friend Soc., 8T 
111. R., 246. Property belonging to the Federal Government is exempt from State taxation. The 
People v. Qale, 93 111. R., 127. Swamp land, so long as it belongs to the county, is not subject to 
taxation, and a purchaser of such land at a tax sale acquires no title. County of Piatt v. Goodell, 
97 111. R.,84. Land belongingtoan institution of learning, but which is not used exclusively for *he 
interests of the institution, is not exempt from taxation. Pres. Theological Seminary v. The Peo- 
ple, 101 111. R., 578. Institutions of purely public charity whose property is exempted from taxa- 
tion must be corporations, and it may well be doubted if the statute intended to embrace more 
than such institutions as are founded and maintained by the State. The People v. Seaman's Friend 
Soc., 87 111. R., 246. Where the property of a corporation is by charter exempted from taxation, 
the exemption amounts to a legislative contract, binding on the State, and the property cannot 
afterwards be subjected to taxation. The People v. Soldier's Home, 95 111. R., 561. The county 
board has jurisdiction to give relief against an assessment of property for taxation which is a*~ 
empt. Preston v. Johnson, 104 111. R., 625. 

All personal property should be assessed at Its fair cash value, and all real estate at a prh e ii 
would bring at a fair voluntary sale. Law v. The People, 87 111. R., 385. Capital stock, within th» 
meaning of the revenue law, is intended to designate the property of the corporation subject, to 
taxation, not in separate parcels, but as an homogeneous unit, partaking of the nature of person- 
alty, and subject to the burdens imposed upon it at the domicil of the owner, which is where >' 
exercises corporate functions, and where its business is done. Quincy E. R. Bridge Co. v. touvn 
of Adams, 83 111. R., 615. In finding the value of capital stock, etc., of a railroad company epet 
ating in this and other States, for the purpose of assessment in this State, the State Board u« 
Equalization take the value of the entire capital stock, and set apart so much thereof as the pro 
portion of the length of its main line in this State bears to the length of the entire road. O. <l 
M. R. R. Co, v. Weber, 96 111. R., 443. The tangible property of a corporation and the shares oi 
stock, are separate and distinct kinds of property under different ownership, and are both liabl» 
to taxation. Danville Banking Co. v. Parks, 88 111. R , 170. The assessment and taxation of th» 
capital stock of a corporation over and above the valuation of its tangible property is not d**»bl* 
taxation. Danville Lumber Co. v. Parks, 88 111. R., 463. 

Land dedicated by the owner as a park to the trustees of the town " for the benefit of th» 
owners of lots fronting the same," remains private property and is subject to taxation and 
special assessment under the general laws. McChesney etal. v. The Peopie,99 111. R., 216. The pur. 
chaser of property on the fii st day of May is considered the owner for purposes of taxation. 
Biggins v. The People, 96 111. R., 381. Where a chattel is levied upon in attachment before in* 
tax warrant comes to hands of an officer, the rights of a purchaser under the attachment will 
relate back to the attachment levy and he will hold the property free from the lien und** tn* 
tax warrant. Gaar, Scott & Co. \. Hurd, 92 111. R., 315. 

For the purposes of taxation, steam engines and boilers are considered as personal pro '«en%. 
Johnson v. Roberts, 102 111. R., 655. 

Where commission merchants furnish money to country dealers with which to pui thai** 
grain, the latter to pay ten per cent, interest on the money till paid and the commission en- 
chants to receive one cent per bushel as commission in handling and selling the same: Ueu*, 
that the transaction was a loan of money by the commission merchants and the grain bel«nge4 
to the country dealers, and it was properly assessed and taxed to them. Lyle v. Jacques, 1 .1 II- 
R., 644. A mistake in the name oi the owner of property assessed, as C. Ai. Jacques & C •>. to» 
Jacques, Bros. & Co., will not vitiate the assessment or tax. Lyle v. Jacques, 101 111. B , 64* 
Where a party, not the owner or lessee of property, having no taxable interest therein, bur wh» 
is merely in joint use of the same with the owner for a compensation, is taxed for one-hulf o* 
its value, the tax is illegal and may be enjoined. Irvin v. N. O., St. L. & C. R. R. Co., 94 IH. K. 
105. Where the legal title appears in one who is in fact but a trustee for another, but the tru* 
is not declared, it is rightfully assessed in the name of the trustee. The trustee may have »» 
listed in the name of the equitable owner. The People v. Seaman's Friends Soc, 87 111. R., 'Hi 

Property permanently located at a particular place is subject to taxation there, whether tn« 
owner resides there or not. A boat is to be taxed at its home port without regard to the plae» 
where its owner resides. Irvin v. N. O., St. L. & C. R. R. Co., 94 111. R., 105. Where parties t*»- 
siding and doing business in one town or city are also engaged in a manufacturing business m 
another town or city, from which place the goods manufactured are sent to the former plar *. 
all the property on hand on the first day of May at the place of manufacture is subject uu*- 
ation at that place. Selz v. Cagwin, 104 111. R., 647. 

The revenue law requiring all property in this State to be assessed for taxation, does not r»~ 
fer to property merely passing through or in the State tor a temporary purpose. Irvin y. *V. o .. 
St.L.&C. R. R. Co. . 94 111. R., 105. 

The schedule returned by a party to the assessor is not an assessment until it is passed upo» 
and approved by the assessor. Felsenthal v. Johnson, 104 111. R., 21. 

Where a railroad corporation formed under the laws of this State, is consolidated with 
another out of the State, the consolidated company is considered as formed under the laws of 
this State, for the purpose of assessment of capital stock. O.&MRR. Co. v. Weber, 96 111. R., 
443. Contractors building a railroad upon contract, but who are not vested with the franchise 
or right of way, are not the owners of the road for purposes of taxation. Union Trust Co. v. 
Weber, 96 111. R., 846. 

Land held and in actual use by a railroad company for side-tracks, switches and turn-outs* 
is railroad trark within the meaning of the revenue law. C &. A. R. R. Co. v. Ihe People, i* ID 



REVENUE. 565 



9 ,, S5&. The land constituting the right of way of a railroad, with the ties, rails, etc., in place 
oa thet rack, and turn-outs, depot grounds and buildings are real estate, but the rolling stock is 
o*ade by statute personal property for the purposes of taxation. Union Trust Co. v. Weber, 96111. 
K^ 346. Where a lot is returned by a railroad company in its list as being used for tracks, etc., 
in connection with the road for railroad purposes, and the board of equalization assess the 
same, and taxes are levied and paid thereon, an assessment by the local assessor of the same lot, 
will be double assessment and illegal. O. & A. R. R. Co. v. The People, 99 111. R., 464. The roll- 
ing stock and track of railway companies are to be assessed by the State Board of Equalization, 
but all other railroad property is to be assessed by the local assessors. C. B. & Q. B. R. Co. v. 
Siders, 88 111. R., 320. 

The revenue law makes it the duty of the owner, where a tract of land is divided into par- 
cels so that it can not be described without metes and bounds, to cause such lands to be surveyed 
and platted into lots, and the plat certified and recorded according to law. Where this is done, 
the lots may be assessed according to their numbers. The People v. C. & A. R. R. Co., 96 111. R., 
869. A survey and platting of land by a deputy county surveyor, at the instance of an assessor, 
without auy notice by the county clerk to the owner, or not at the request of the clerk, the plat 
not being recorded, is not a compliance with the statute, (Sec. 62 Revenue law,) and binding on 
no one. The People v. C. & A. R. R. Co., 96 111. R., 369. 

Any description of property for the purposes of taxation by which the property may be 
identified by a surveyor with reasonable certainty, is sufficient. Fowler v. The People, 93 111. R., 
116. A lot assessed as "Lot 5 in assessor's subdivision oi the west half of Section 1, Township 
13, N. R. 12 west," no number of acres being given, when it appears that no plat of any such 
lot as described was ever made and recorded, is insufficient in description and no judgment for 
taxes can be had thereon. Sanford v. The People, 102 111. R., 374. An assessment for taxes made 
by a person not authorized by law, as an assessment by a township assessor of railroad property 
that should be assessed by the State Board of Equalization, is void. C. & A. R. R. Co. r. The 
People, 98 111. R., 350. 

Where the proper appointing power in a town meet and determine that there is a vacancy 
tn the office of assessor by a failure to elect, and they appoint one who qualifies, his acts in 
making an assessment as a de facto officer will be valid until he is ousted by a proper proceeding 
for that purpose. The People v. Lieb, 85 111. R., 484. Assessors may act upon their own knowl- 
edge and judgment in fixing the value of property, and it is not essential to the validity of an 
assessment that they should hear evidence as to its value. St. L., V. & T. H. R. R. Co. v. Surreli 
*SI11.R.,535. 

The statute gives an appeal from the action of the assessor to the town board of review, and 
again to the county board, and a party must avail himself of these means to remedy any griev- 
ence in the assessment of his property. Felsenthal v. Johnson, 104 111. R., 21. On an application 
to have taxes refunded on the ground that the land was not subject to taxation, the county 
hoard may well refuse to have the same refunded where they have not reasonable grounds to 
he satisfied that the property is not liable to taxation. Champaign Co. v. Reed, 100 111. R., 304. 
A county board has no power to make an abatement in taxes legally assessed. Madison Co. v. 
Vmith, 95 111. R., 328. If any material increase is made by a county board in the aggregate 
amount of all the towns, in equalizing the valuation between the different towns, beyond what 
Is actuallv necessarv or incidental, it is without authority and void. Kimball v. Merchants' Sav- 
ings and Trust Co., 89 111. R., 611. 

The State Board of Equalization has power to increase the valuation of railroad property 
returned bv the officers of the corporation, without first hearing evidence impeaching the re- 
turn. St. L. V. de T. H. R. R. Co. v. Surreli, 88 111. R., 535. The State Board of Equalization 
ihould assess railroad track and rolling stock of railway companies in this State, and an assess- 
ment ot such property by the local assessor is void. C. de A. R. R. Co. v. The People, 98 111. R., 
150. A railway company can not be heard to object because the board of equalization has failed 
13 assess the value of the road beds under the rails, including bridges, embankments and cul- 
verts of all railroads in the State as tangible property. C, B. de Q. R. R. Co. v. Siders, 88 HI. R., 
J20. The distribution of the taxable property of a railroad among the counties through which 
the road runs, is a mere ministerial act, and may be done by the secretary of the board of equal- 
isation after the adjournment of the board. Wilson v. Weber, 96 111. R., 454. 

A tax for State purposes is not void, in whole or in part, because the rate per cent, fixed by 
whe governor and certified by the auditor will produce a larger amount than is authorized by law 
to be levied. Edwards v. The People, 88 HI. R., 340 ; Union Trust Co. v. Weber, 96 111. R., 346. Any 
certificate by the town clerk, no matter in what form of words, which gives the board of supervi- 
sors to understand definitely what amount of taxes is required to be levied for town expenses, ia 
sufficient. Gage v. Bailey, 102 HI. R., 11. 

Lands are liable to back taxes, interest, penalty and costs, under Section 129 of the Revenue 
law, when they have been forfeited to the State, whether the forfeiture was in due form or not. 
Belleville Nail Co. v. The People, 98 HI. R., 399. 

A warrant is indispensable to the power of a collector to levy and distrain for taxes, and it is 
essential to the creation of a lien on the personal property of the person charged with taxes. 
Ream v. Stone, 102 111. R., 359. The tax book and warrant should not be delivered to the town col- 
lector until he has given bond and taken the oath of office. Leib v. Henderson, 91 111. R., 282. 
Where a county clerk delivers the assessor's book and blanks to one appointed to the office of as- 
sessor, and who is possessed of the proper evidence of such appointment, he has discharged hi* 
duly, and cannot be compelled to deliver the same to another person claiming the same office by 
election. 1 he People v. Leib, 85 111. R., 484. The want of a clause in the collector's warrant au- 



566 GENERAL NOTES. 



t horizing him to distrain for taxes, does not render the warrant void. Union Trust Co. v. Weber 
96 111. R., 346. 

The statutory lien of the bond of a collector of taxes attaches to all the lands owned by th« 
principal at the time of the approval of the bond, and also to after-acquired lands. Crawford v 
Richeson, 101 111. R., 351. 

A notice of sale of property for taxes described the property, which was bulky, as standing on 
a certain fractional quarter section, and that the sale would be at R. in W. county, and the evi- 
dence showed that the quarter section named in the notice was in the town of R. Held, that the 
reasonable understanding from the notice was that the sale was to be at the place in R. where the 
property was standing. Lyle v. Jacques, 101 111. R., 644. 

The statute making the collector's report to the county court on application for judgment 
against lands for taxes, prima facie evidence that all the requirements of the law have been com- 
plied with, is not unconstitutional. Burbank v. The People, 90 111. R., 554. 

The statute requiring the payment of one per cent, a month on unpaid taxes after May first, 
is constitutional. This statute does not apply, however, to taxes of 1878 and prior years. Th* 
People v. Peacock, 98 111. R., 172. 

The statute requiring the delinquent list to be filed five days before the term of court at which 
application is to be made, is directory merely and a literal compliance is not essential to the jurvw 
diction of the court. Liendecker v. The People, 98 111. R , 21. A description of land in a notice wu 
sale for taxes served upon the occupant, describing the property as "Lot 5, lot 23, in Carpenter* 
Addition," etc., instead of "Lot 5, in block 23." is sufficient. Oarrick v. Chamberlain, 97 111. R , 
620. Application for judgment against delinquent lands for State and county taxes is required to l>e 
made at the May term of the county court, but in respect to special assessments levied by a city of 
town, organized under the general incorporation law, the city council may appoint the term of 
court at which such application may be made. Leindecker v. The People, 98 111. R., 21. On appli- 
cation for judgment against, lands for taxes, proof that the lands were assessed for more than they 
would sell for is not admissible. English v. The People, 96 111. R., 566. As municipal corporations 
can levy no taxes unless the power be plainly and unmistakably conferred, it devolves upon the 
People, in an application for judgment on a city tax, to show that such tax has the sanction of la-« 
for its support. English v. The People, 96 111. R., 566. 

In proceedings for judgment for taxes, the collector's return fills the place of a declaration 
and judgment cannot be rendered thereon for matters not embraced in its allegations. Mann v 
The People, 102 111. R., 346. The making and filhig of the delinquent list, with description of th« 
property, and the publication of notice of the application, are essential to give the court jurisdio- 
tion in an application for judgment for taxes. The People v. Dragstran, 100 111. R., 286. Any de- 
fect in, or even want of notice, of an application for judgment against lands for taxes, is obviateij 
by the appearance of the tax-payer and contesting the tax on its merits. Hale v. The People, St 
111. R., 72. No judgment for taxes can be rendered against property so imperfectly described is 
the assessment as not to be capable of location. The People v. C. & A. R. R. Co., 96 111. R., 369. O » 
application for judgment against delinquent lands for taxes, the court has no power to reduce th ft 
assessment for over valuation. If property is assessed too high, the owner should apply under th » 
86th or 97th Section of the Revenue Act to have the assessment corrected. The People v. Bij 
Muddy Iron Co., 89 111. R., 116. 

A judgment in the county court for taxes is not conclusive upon the owner of the liability ol 
the land for the taxes assessed, where he does not appear and contest the application for judgment, 
and he may still contest the legality of the tax in another proceeding. Gage v. Bailey, 102 111. R, 
11. The land owner by appearing and urging general objections to application for judgment foi 
taxes, waives objections as to the sufficiency of the notice for application. But such an appear- 
ance does not change the proceeding into one in personam. Where the error in proceedings against 
land for taxes is such that a judgment is a nullity and void, error may be assigned on such jndg* 
ment, although no objection was made or exception taken in the county court. The People v. 
Dragstran, 100 111. R., 286. A person not the owner or not having any interest in the land, has no 
right to object to judgment against the same for taxes, unless he appears as agent or attorney oi 
the person interested. Hosmer v. The People, 96 111. R., 58. 

"Where land has become forfeited to the State for non-payment of taxes, a county board has no 

{>ower to set the forfeiture aside. Neither has such board power to make an abatement of tuxes 
egally assessed, extended and placed in due course of collection. If a party is aggrieved by an 
over assessment he should apply to the board of review to have it corrected, or to the July session 
of the board under the 97th Section of the Revenue Law. Madison Co. v. Smith, 95 111. R., 328. 

A purchaser of land at a tax sale by one whose duty it was to pay the taxes, will operate as a 
payment of the taxes only, and the purchaser will not be permitted to acquire any title by suca 
purchase. Lewis v. Ward, 99 111. R., 525. A municipal corporation has no power to purchase lands 
at a tax sale and acquire title by complying with the statute in regard to such sales. City of Cham' 
paign v. Harmon, 98 111. R., 491. 

If a judgment for taxes may be inquired into on a bill in chancery, and it may be shown that 
part of the taxes included in the judgment is illegal, the owner should be allowed to redeem from 
the sale by paying the redemption money allowed by the statute had the judgment and sale boon 
for the proper amount of taxes. Gage v. Busse, 102 HI. R., 592. The county clerk is the proper 
person to receive the redemption money, and it is his duty to inform the owner seeking to redeem 
of the correct amount to be paid for that purpose ? and if the clerk misinforms him as to the 
amount required, and fails to require the payment of taxes subsequent to the sale, a court of equity 
will protect the owner upon his payment of such subsequent taxes, notwithstanding the land may 
have been again sold for such taxes. Payne v. Newcomb, 100 111. R., 611. 



REVENUE. 



56? 



A notice of tax sale upon a person occupying the lands sold, is sufficient although such occu- 
pant is not the owner. Garrick v. Chamberlain, 97 111. R., 020. It is not necessary that service oV 
the notice of a tax sale should be had on the premises, but it may as well be made elsewhere. Gagu 
v. Bailey, 102 111. R., 11. 

The fact that several lots were included in one certificate of purchase, affords no evidence that 
they were not sold separately and in consecutive order. The sale and redemption book used by 
the collector in making the sale affords the only evidence as to the manner in which lots have 
been sold. Gage v. Bailey, 102 111. R., 11. A part owner of land seeking relief from a forfeiture 
of his land for taxes, for a refusal to pay upon the whole tract should show by his petition the 
distinct part of the tract of which he claims to be the owner. Madison Co. v. Smith, 95 111. R., 328. 

A mere taxation of property imposes no personal liability upon the owner. Resort can be had 
for the collection of the tax only to the thing taxed. Craw v. Village of Tolo?w,96 111. R., 255. 
Although property may become forfeited for taxes at a time when a particular person is owner, 
yet if the taxes were assessed for prior years, when he was not the owner of the property, there 
can be no personal liability on him to pay the tax. Biggins v. The People, 96 111. R., 381. 

A recovery of a personal judgment against the owner of real estate for taxes, does not dis- 
charge the lien on the real estate. The People v. Stahl, 101 111. R., 346. The failure to return 
taxes assessed against railroad property as delinquent will not affect the rights of the State or 
municipalities. The tax becomes a lien from the first day of May and the hen continues until 
it is paid. Union Trust Co. v. Weber, 96 111. R., 346. The taking a mortgage upon real estate 
charged with a subsisting lien for back taxes not brought forward or extended, will not operate 
to discharge such taxes or release the lien of the same. Union Trust Co. v. Weber, 96 111. R., 346. 
A court of chancery has no jurisdiction to enforce the lien upon real estate given by the statute 
for taxes ; such lien can be enforced only in the mode pointed out in the statute. The People v. 
Bijgins, 96 111. R., 481. A tax on the capital stock and franchise of a corporation becomes no 
lieu upon the real estate of the corporation until made so by the collector taking the proper 
steps to make it such. Belleville Nail Co. v. The People, 98 111. R. 399. Taxes assessed upon real 
property become not only a debt against the owner, which may be recovered In a persona' 
adion, but also a charge upon that particular tract of land and no other tract. Binkert v. Wa- 
bcuXR'y Co., 98 111. R., 205. 

Taxes assessed upon real property become a lien upon such property from and including the 
first day of May in the year they are levied until paid. Binkert v. Wabash R'y Co., 98 111. R , 20W 
It ia not essential to the lien given by law for taxes, that an actual levy should be made withit, 
the year. It may, by authority of the legislature, be made in subsequent years. Fairfield T- 
Tht People, 94 111. R. 214. The lien on personal property for taxes created by the warrant, if nafc 
pexJected by a levy, will be lost after the return of the warrant. Ream v. Stone, 102 111. R., 35*, 
The mere assessment of taxes upon personal property will not create a lien upon the property 
The warrant for the collection of taxes becomes a lien from the time it comes to the officer',* 
hands. Gaar, Scott & Co. v. Hurd, 92 111. R., 315; Binkert v. Wabash R'y Co., 98 111. R., 205. Bacto 
tax«s are not a lien upon personal property until the collector's books with a warrant are placet! 
in his hands. Ream v. Stone, 102 111. R. 359. 

A failure to complete an assessment, or to return the same in the time required by th* 
statute, will not vitiate it. Wright v. The People, 87 111. R., 582. Mere irregularities in valuation 
or levying taxes not affecting substantially the justice of the tax, will not be considered. Lata 
v. Tite People^ 87 111. R., 385. Errors and informalities in the assessment, levy and collection ol 
taxeo, not affecting the substantial justice of the tax, present no grounds to defeat its collection. 
Edwards v. The People, 88 111. R., 340. 

The taxation of bridges across navigable waters does not exempt the companies owninn 
such structures from payment of taxes upon their capital stock. Quincy R. R. Bridge Co. v 
County of Adams, 88 111. R., 615. Illinois Central Railroad lands are not subject to taxation, even 
thounh the company may have entered into a contract of sale of the same, if no conveyance 
has bjen made, and the company have the right under the contract of sale to declare a for 
feituie and repossess the land. III. Cent. R. R. Co. v. Goodwin, 94 111. R., 262. Lands selected bii 
the Illinois Central Railroad Company under the act of Congress, are liable to taxation whea 
sold ly the company and paid for, although no conveyance may have been made. Champaign 
Co. v. Reed, 100 111. R.,304. 

Tvie collection of a tax should never be enjoined except where the tax is levied upon prop- 
erty exempt from taxation, or where it is doubly taxed, or the tax is levied without warrant of 
law, or by persons having no power to make a levy, or in cases of fraud in making the valua- 
tion. Union Trust Co. v. Weber, 96 111. It., 346 The want of perfect equality in taxation is no 
grouud to defeat a judgment for taxes. Edwards v. The People, 88 111. R., 340. A court of equity 
will entertain a bill to restrain a tax fraudulently assessed, but not for a mere excessive valua- 
tion, and irregularity in the assessment. Gage v. Evans, 90 111. R., 569. The collection of a tax 
properly levied will not be enjoined because there may be a threat to use the money for an ille- 
gal purpose when collected. Town of Lemont v. Singer & Talcott Stone Co. 98 111. R., 94. A bill 
to enjoin the collection of a tax which fails to show an equiiable excuse for not applying to the 
town board of review, or county board, for relief, is bad on demurrer. Johnson v.Roberts,l02 111. 
R., 655. A failure to certify a school tax by the directors, bv the day named in the statute, doea 
not invalidate the tax. Moore v. Fessevbeck, 88 111. R., 422. On a bill to enjoin the collection of s. 
portion of a tax on the ground it is illegal, there must be a tender of the amount admitted to be 
legal. Johnson v. Roberts, 102 111. R.. 655. The listing or assessing of railroad property in a wrong 
name as owner, forms no ground fur enjoining the collection of the tax. Property is liable to 
nay a tax without reference to its ownership. Union Trust Co. v. Weber, ?6 111. R., 346. Where 



568 GENERAL NOTES. 



the proceedings to establish a high school are regular and in conformity to a valid law. the levy 
and collection of a tax to maintain such school will not be enjoined. Richards v. Raymond, 92 
Iil. R. t 612. The fact that school directors may have lost or squandered part of the funds raised 
from the sale of bonds issued to build a school house, is no ground for enjoining the collection 
of a tax levied to pay interest on such bonds. Town of Lemont v. Singer & Talcotl Stone Co., 
98 111. R„ 94 A foreign corporation can not interfere by bill to enjoin the collection of taxes 
legally or illegally assessed against a domestic corporation, unless the former will be injuriously 
affected by the collection of such taxes. Archer v. T. H. & I. R. R. Co., 102 111. R., 493. A muni- 
cipal corporation can not maintain a bill to restrain the collection of a tax levied on property 
within its limits to pay bonds of the corporation, although they aie illegal. Only tax-payers 
can complain of such tax. City of Waverly v. Auditor of Public Accounts^ 100 111. R., 364. Courts 
cannot convert themselves into assessors of properly for purposes of taxation, and re-assess in 
every case whert an assessor has erred in judgment as to the value of property, and the collec- 
tion of a tax will not be enjoined merely because of an erroneous judgment as to the value of 
property. Traders Ins. Co. v. Farwell, 102 111. R., 413. A tax levied to pay municipal certificates 
issued in excess of the constitutional limitation of indebtedness, is illegal. Law v. The People, 
87 111. R., 385. A city tax levied upon an assessment made under a law after its repeal, and not 
in accordance with the law in force at the time, is invalid. Burbank v. The People, 90 111. R., 554. 
A city tax levied to pay bonds issued in aid of a private manufacturing company can not be en- 
forced, as such bonds are void. English v. The People, 96 111. R., 566. Where bonds have been 
Issued by a township to a railroad company under a vote at an election held without authority 
of law, neither the State nor the local officers have authority to cause a tax to be levied for the 
payment of such bonds, and they may be enjoined from attempting to do so. Rutz v. Calhoun 
Co., 100 111. R., 392. Where the indebtedness of a city exceeds the constitutional limita'ion of five 
per centum, the levy and collection of a tax for the purpose of paying an additional indebted- 
ness incurred before such levy, in violation of the constitution, will be enjoined. Howell v. City 
of Peoria, 90 111. R., 104. 

ELECTIONS. 

An election held by persons who are officers de facto is not void. Lippincott v. Town of Pana, 
92 111. R., 24. Under the law for the incorporation of cities and villages, that on petition of one- 
*»1ghth of the legal voters of a city or village, the mayor and city council shall submit the ques- 
tion of incorporation under the general law to a vote, and appoint a time and place for the elec- 
tion, the mayor alone had no right to call such election. Stephens v. The People, 89 111. R., 337. 
It is essential to the validity of an election that it be held at the time and in the place provided 
by law. Where the time and place ot an election are fixed by law, it has been held that an omis- 
sion to give the proper notice of the election will not vitiate an election held on the day appointed 
by law ; but where the law fixes no time or place, leaving the same to be determined by some 
authority named in the statute after the happening of some condition precedent, the election 
must be called and held at the time and place fixed by the authority designated by law, and 
none other. Stephens v. The People, 89 111. R., 337. Where an election was required to be con- 
ducted the same as general elections, having three judges of election and two clerks, was held 
by one acting in the capacity of moderator of a town meeting, with but one clerk, it is abso- 
lutely void. Lippincott v. Town of Pana, 92 111. R.. 24. Mere irregularities in conducting an 
•lection and counting the votes, not proceeding from any wrongful intent, which deprive no 
legal voter ot his vote and do not change the re-ult, will not vitiate the election. Hodge v. Linn, 
*00 111. R., 397 ; see also Bacon v. Malzacher, 102 111. R., 663. 

A vote for a candidate on a separate slip of paper folded within the numbered ballot de- 
posited, but not attached to it, is properly rejected. Webster v. Gilmore, 91 111. R., 324. A ballot 
•»nce deposited in the ballot-box will be presumed to be a legal vote until there is evidence to the 
contrary. Clark v. Robinson, 88 111. R., 498. Where it is shown the ballots have been improperly 
Handled by the contestant out of the presence of the other party or of the election officers, ren- 
dering it possible for them to be tampered with, the ballots will not prevail as evidence over 
»b.e result as shown by the poll books, tally lists and certificate of the canvass by the election 
• >>ficers. Kingery v. Berry, 94 111. R., 515. 

The returns of an election consist of the certificate of the officers conducting the same, en- 
cored on the poll books, together with a list of voters, and one of the tally lists, all of which are 
to> be carefully enveloped, sealed and delivered to the county clerk. The People v. Powell, 91 111. 
B , 525. Returns of town elections should be authenticated by the judges and clerks of elec- 
tions in the manner indicated in Section 61 of the general election law. Where the judges and 
clerks of election have neglected to sign their names to the statements or certificates of the re- 
sult, they may be permitted to do so at any time before the board of canvassers have completed 
their canvass; and where the only defect in the returns of an election was that the statements 
or certificate was not signed by the judges and clerks of election, it was held that the canvassers 
had no right to act upon such returns without an amendment thereto by adding the signatures 
of the judges and clerks of elections. The People v . Nordheim, 99 111. R., 553. The canvassing 
board of an election must determine for itself whether the papers transmitted are, within the 
meaning of the law, returns of an election. The People v. Nordheim, 99 111. R., 553. 

A person who has been laboring under some kind of illusion or hallucination, but not so as 
to incapacitate him for the general managemnt of business, which illusion or hallucination does 
not extend to political matters, cannot be denied the privilege of the election franchise on the 
ground of a want of mental capacity. Clark v. Robinson, 88 111. 498. The constitutional provi- 
sion as to residence of a voter means that he shall have a permanent residence in the State, 
county, town and precint where he offers to vote. Johnson v. The People, 94 111. R., 505. A pam- 
per remaining at the county poor house, sent there from another township, does not acquire a 



COUNTIES — ANIMALS. 



569 



-residence in the township where the poor house is located so as to entitle him to vote in the 
"latter township. Clark v. Bobinson, 88 111. R., 498. 

The ballot of an unregistered voter, received by the judges of election on his affidavit, will 
not be rejected because the other proof of his qualification was made by a person not a house- 
holder and registered voter. Clark v. Bobinson, 88 111. R., 498. On the contest of an election, it 
is error to reject the vote of an unregistered person whose vote was received without challenge 
or objection, without proof showing that he was not entitled to vote. Kuykendall v. Harker, 89 
.111. R., 126. In a contested election, where the proof showed that persons of foreign birth voted 
who had only made declarations of their intention to become citizens, it was held that their 
votes should not be counted. Clark v. Bobinson, 88 111. R., 498. Where an election board permits 
a person to vote, that creates a prima facia presumption of his right to vote, which must be 
overcome by proof, on a contest of election. Webster v. Gilmore,91 111. R., 324. There is no 
authority for rejecting a numbered ballot because it was folded with one which was not num- 
bered. Clark v. Bobinson, 88 111. R., 498. A vote should not be rejected because it was not per- 
sonally given by the voter, but was handed from the voter to the judges by a third person, the 
Fallot being all the time in sight of the judges of election. Clark v. Bobinson, 88 111. R., 498. A 
ballot with the names of two persons on it, one written and the other printed, with the office 
voted for erased, cannot be counted for either person. Clark v. Bobinson, 88 111. R., 498. Ballots 
cast for " E. Clark" and " Clark," counted for " E. E. Clark ; " so ballots cast for " W. E. Robes," 
"ivobertson," "W. E. Robers," and "Robin" counted for "William E.Robinson." Clark v. 
Bobivson, 88 111. R., 498. A bet on the result of an election is illegal and void. Petillon v. Hip* 
jple, 90 111. R., 420. 

COUNTIES. 

County boards have not the power to consolidate several towns into one, except upon proper 
.-petition and submission of the question to the voters of the several towns, as provided by the 
statute. The People v. Brayton, 94 111. R., 341. The county board has no authority to relieve a 
county officer from his duty to make regular reports of his receipts from the fees of his office, 
or from his duty to pay into the county treasury the excess of such receipts over his fixed salary, 
by any contract with the officer in respect to the expenses ot his office. Briscoe v. Clark County. 
95 111. R., 309. The officers or official agents of a county have no power to issue commercial 
paper without express legislation therefor. The People v. Johnson, 100 111. R., 537. 

Where a board of supervisors made an appropriation to aid in the construction of a bridge, 
having previously rescinded a resolution that orders should not be issued in tractions in dis- 
charge of such appropriation, the re-cinding of the resolution was held by implication to sanc- 
-tion the issuing of orders in small amounts in discharge of the appropriation. Board of Sup'rs 
v. Sage, 89 111. R.. 265. A county board having authority to contract for the repair of a court 
house, and not being restricted as to the amount or mode of payment, may issue interest bear- 
ing orders therefor. County of Jackson v. Bendleman, 100 111. R., 397. A county board cannot 
allow or pay interest on common county orders issued for current county expenses. Hall v 
Jackson County, 95 111. R., 352. A county order does not possess the qualities of commercial 
paper so as to cut off equities of the corporation when in the hands of an assignee. But an 
assignment of a county order is valid to pass the legal title of the payee, so as to enable the 
assignee to sue in his own name. The loss of such an order, even though indorsed in blank, 
will not affect the right of the payee to payment of his debt. The People v. Hurd, 100 111. R., 
537. It is error to render a judgment for costs against a county. The People v. Emigh, 100 111. 
R., 517. 

ANIMALS. 

Under the stock law of 1874 an election may be held at any general election, or every such 

-election until the result shall be against cattle running at large, notwithstanding a previous vottf 

allowing them to run at large. But after a vote requiring domestic animals to be kept up by 

their owners, no other vote upon that subject is allowed until after the expiration of five yearn 

Vagt v. Dunley, 97 111. R., 424. 

The owner of domestic animals, such as dogs, horses and oxen, not naturally inclined to 
mischief, is not liable for an injury committed by them to the person or personal property of 
another, unless it be shown such owner previously had notice of the animal's propensity to 
mischief, or that the injury is attributable to some other neglect on his part. Mareau v. Vanatta, 
**8 III. R., 132. 

ROADS AMD BRIDGES. 

[See ante, pp. 115-225.} 

A person who prosecuted a petition to' alter a road over his land before the commissioners of 
-highways, and was present at every step taken, will not be allowed, by certiorari, t.o question the 
legality of the proceeding, in case the decision is adverse to him. If he acts in the matter as 
-though the proceeding was in conformity to the law, he will he bound by his acts, and estopped 
from questioning its legality or regularity. A party seeking the alteration of a road over his laud, 
by appearing before the commissioners of highways at their meeting to determine whether to 
.grant the application, and is heard by them, admits that proper notice of the time and place of 
the hearing was given, and he will, thereafter, be estopped from denying the same. Where a party 
appears at the time and place fixed for the hearing by the supervisors, of an appeal from the high- 
way commissioners, and obtains a continuance of the time of the hearing, and on the day to 
Which the same was continued he and the other parties appear, and are heard until the final con- 



570 



GENEEAL NOTES. 



elusion is reached, he will be estopped from urging afterward that sufficient notice of the appeal 
was not given. Where highway commissioners recite, in their order denying the prayer of a peti- 
tioner to alter a road, that they met at the time and place named in the notice of the hearing, chat 
will be sufficient evidence that proper notice was given. The statute does not require the super- 
visors on an appeal from an order of the highway commissioners, on granting a continuance of 
the hearing of the appeal, to make proclamation of the continuance or postponement. All persons 
having an interest are presumed to be present, and to take notice of the adjournments of the super- 
visors. The statute does not require the supervisors, to whom an appeal is Taken from an order of 
the highway commissioners, to announce their decision within twenty days from their first meet- 
ing. It fixes no time in wnicli tneir decision shall be reached and announced. It is sufficient 
if the report of the supervisors shall be filed with the town clerk within ten days after it has been; 
made.— Board of Supervisors v. Magoon, 109 111. R., 143. 

Where a person who takes an appeal from the decision of the commissioners of highways 
appears and contests the matter in controversy at every step, without making any objections to the 
proceedings before the commissioners, so as to afford an opportunity to obviate the same by amend- 
ment, he cannot take advantage of such objection, made for the first time on trial of the appeal. — 
Huston et al. v. Clark et al., 112 111. R., 314; Blake v. The People etc., 109 111. R., 504. 

The commissioners of highways refused to grant the prayer of a petition for the laying out of 
a highway, and their order was filed in the town clerk's office, whereupon a party interested 
appealed from the decision of the commissioners, by filing, as he claimed, the necessary paperu 
before a justice of the peace. The latter selected and summoned three supervisors to hear the 
appeal, who made a preliminary order granting the prayerof the petition, then filed with the jus- 
tice a certificate asking for a jury to assess damages. The justice issued a venire for a jury,, and 
fixed a day for the trial, when a common law writ of certiorari was served upon him: Held, that 
the writ could bring nothing before the court except tbe petition for the appeal, the appeal bond 
and the certificate asking for a jury, these being the only papers required to be filed before the 
justice, and that as no court could decide, from these alone, the legality of the proceedings, the 
writ was properly dismissed. The writ should not have been sued out until the proceedings were 
completed, and the papers filed with the town clerk.— Gerdes v, Champion, 108 111. R., 137. 

While the commissioners of highways, by the statute, may make such changes between the 
termini of the road specified in the petition, as the convenience and interest of the public, in 
their judgment, may require, yet they have no right to change either terminus of the road, and 
if they do so, the proceeding will be quashed on certiorari. It is not the office of a common law 
writ of certiorari to afford the complaining party an opportunity of having his case re-tried, but 
the object of the writ is to have the proceedings in the inferior tribunal quashed and annulled 
altogether.— Deer v. Commissioners, of Highways, 109 111. R., 379. 

Under the road laws in force in 1853 the county court, upon the return to it of the viewers 
report, with a plat showing cousres and distances, was required to fix the width of a public road in 
the order establishing the same, and enter the same on record. The statute did not of itself fix 
the width of the roaa It was simply directory, that the court should determine that matter. 
Where the county court, in its order establishing a public road, failed to fix the width of the- 
same, and it appeared that such road was opened, traveled and worked upon only the width of 
forty feet for many years, when the commissioners of highways threatened and were preparing to 
open the road four rods wide through the premises of a person jrmplaining against the same, ic 
was Held, that the opening of such road beyond the width of forty feet was properly enjoined on 
bill in equity. Commissioners of Highways v. Harrison, 108 ill. R., 398. 

The public traveled over certain premises as they would over a public street in a city, from 
1850, or earlier, until in 1866 or 1867, when the owner of the land closed the travel by fencing up 
the street, during which time there was a line showing the travel, and the lines of the gutters. 
were or had been marked by plowing furrows and scraping the earth to the middle of the street, 
some of which work was done by the municipal authorities, it appearing that at the time of such 
travel the premises were vacant and unoccupied, and there were but few houses or other improve- 
ments in the vicinity : Held, that the facts would not justify an inference of a public street by 
dedication, or estop the owner from denying a dedication.— Herhold et al. v. City of Chicago, 10$ 
111. R., 467. 



PARLIAMENTARY LAW; 

OR, RULES OF ORDER FOR DELIBERATIVE ASSEMBLIES, ESPECIALLY USEFUL FOR 

TOWN MEETINGS AND BOARDS OF SUPERVISORS. 



Parliamentary Law consists of rules which are recognised as governing pro- 
ceedings in deliberative assemblies. It is so called from the rules of order exist- 
ing from long established usage in the Parliament of England. The Legislative 
Assemblies of the several States, and the legislative branch of the general govern- 
ment of the United States, being formed upon the principle of the English Par- 
liament, have adopted the like rules for their government, and by general custom 
in this country, these rules are recognized in all deliberative assemblies. Legis- 
lative assemblies, however, for the purpose of certainty, generally adopt by 
express vote, the rules of parliamentary law, as expounded by some particular 
writer on the subject, qualified as circumstances may demand, by various rules of 
their own. 

A deliberative assembly is a congregation or convention of persons for the con- 
sideration of matters in which all are concerned. 

Public Meetings. — In many of the States of the Union, counties arc divided into 
several districts called towns or townships, the inhabitants thereof becoming a 
bod y corporate. The law provides for stated meetings of the electors, called town 
meetings, for the consideration of town affairs. In the absence of any provision 
to ihe contrary, these assemblies conduct their proceedings according to the 
mles of parliamentary law.* 

Public meetings by voluntary assent are of daily occurrence. These meetings 
are sometimes convened at the instance of committees appointed for that pur- 
pose ; and are frequently convened at the request of citizens who desire such 

fieeting, on public notice, either by hand-bill notices posted, or by notice in a 

tewspaper. 

Organization of Public Meetings. — The first business at a public meeting is its 
organization. This is effected by choosing a presiding officer to' keep order, and 
a secretary to record the proceedings of the meeting, after which it is competent 
for the meeting to choose such other officers as may be deemed necessary. In 
case the meeting is composed of a very large number of persons, the presiding 
officer is called president ; if not he is usually styled chairman of the meeting. 

When the people have assembled, and the hour of meeting arrives, the meet- 
ing should be called to order. In case the meeting has been convened at the 
instance of a committee, the chairman or person first named on the committee 
should call the meeting to order. In case it was convened at the instance of 
citizens, the first named on the list should assume this duty, otherwise, the 



* Boards of supervisors, as constituted by the laws of Illinois, are deliberative assemblies, and 
their proceedings are conducted according to general parliamentary rules. 



57*2 APPENDIX. 



proper person for this purpose, would be the mayor of the city, or principal 
public officer, or most prominent person present. 

The person calling the meeting to order should take such position in the room 
as to command the attention of the audience, and announce as follows : " Gen- 
tlemen, the hour at which this meeting is to convene having arrived, it is pro- 
posed that we proceed to organize ; I therefore nominate Mr. A. B. as chairman." 
The nomination being seconded, ho proceeds ; " Gentlemen, those who are in 
favor of such nomination, will say 'aye '; those opposed will say 'no'. The vote 
being taken, if carried in the affirmative, he will say, "It is carried," or "it is 
agreed to ; Mr. A. B. is chosen chairman of this meeting; will he please come 
forward and take the chair ?" 

If the meeting is deemed one of importance so that the position of chairman 
would be deemed one of considerable honor, it is customary for the presiding 
officer to return thanks to the meeting for the honor conferred ; this he will do 
on taking the chair. 

As every deliberative body snould have a secretary, the chairman will say, 
** Gentlemen, the first business in order will be the election of a secretary." If 
no other person moves, the person who called the meeting to order should also 
nominate a secretary ; but any person present may make such nomination. 

The secretary being chosen, the further business will be directed by the meet- 
ing. If the meeting is called for some particular purpose, it is proper in selecting 
* chairman to choose some person best acquainted with the object of the meet- 
tag ; if this is the case, the chairman should proceed after the election of secre- 
tary, and state the object of the meeting. If not, he should say, " The chair is 
•vot fully advised as to the object of this meeting. It will be" proper that the 
object of the meeting be stated by some person to whom it is best known." It 
^dll be generally understood who this person is, and a motion may be made call- 
*ng on him for that purpose, or he may be called out by several voices. 

It will be proper for the meeting to choose one or more vice-presidents, and 
w.ne or more assistant secretaries. This is done where the meeting is large — gen- 
erally as a means of manifesting the importance of the occasion. They will also 
choose such committees as may be deemed necessary. 

When an assembly is composed of delegates chosen by and representing 
t>thers, the organization is, in the first instance, considered temporary, upon 
which measures are taken to ascertain who are members ; this is usually done 
oy the appointment of a committee to examine the credentials of those claiming 
to be members, and to report accordingly. 

Until this is done there is a presumption that all present who assume to take 
^art in the assembly, are entitled to do so, as it is supposed that no gentleman 
would be guilty of imposition in this respect. At the time of appointing the 
committee on credentials, it is customary also to appoint a committee to report 
the names of persons for permanent officers of the assembly or convention. 

After the report of the committee on credentials is adopted, the assembly, on 
motion of some member, proceeds to the election of permanent officers. If the 
Barnes of candidates have been recommended by a committee, the adoption of 
their report is regarded as making choice of the persons they have recommended. 
In the case of an assembly composed of delegates, unless it' is an important occa- 
jion, it is not customary for the temporary chairman to return thanks to the 
convention, or to allude to the object of the meeting; he simply acts as modera- 
tor for the time being, for the purpose of organization. 

It is proper that the permanent chairman, or president, on assuming his 
duties, shonld express his thanks for the honor conferred upon him, and state in 
general terms the object of convening the assembly. 

In case the assembly or convention of delegates is small, it is customary to 
consider the temporary organization as permanent from the beginning. 

When the organization of the meeting is completed by the election cf officers, 
the chairman snould announce, "The meeting is now fully organised, and ready 
to pi^ <ceed to business." If no motion is made or business presented, it is proper 



PARLIAMENT ARY LAW. 57!* 



for the chairman to say, ""What is the pleasure of the meeting ?" And at any 
time when there is no business before the meeting, and there is no indication of 
presenting anything, the chairman should announce, " Gentlemen, there is n^ 
question before the meeting ; what is your further pleasure ?" 

Manner of presenting business. — Every member of a deliberative body, in the 
absence of express rule to the contrary, has the right to present propositions for 
the action of the assembly. This is by a simple motion or by formal resolution. 
But where the object of the meeting is of a general nature, or where the subject 
does not seem to have been duly matured by any one present, it is customary to 
appoint a committee to prepare and report resolutions expressive of the sense of 
the meeting. "When a member desires to present a proposition for the action of 
the assembly which is of importance, it should properly be reduced to writing : 
such propositions are called resolutions, and commence thus : " Resolved, That." 
But a matter of less importance may be by a mere motion, which need not be in 
writing unless for purpose of certainty in conveying the ideas of the mover 

Motions, and manner of proceeding. — A motion is simply a proposition of a 
member, as his individual sentiments. If the proposition offered prevails, it is 
then adopted as the conclusion or sense of the assembly. 

But the proposition by a single member is not considered sufficient to claim 
attention from the assembly ; it is therefore required that it shall be approved or 
seconded by one other member. This being done, the mover is entitled to have 
it put to the assembly. In general practice, however, all motions are presumed 
to be seconded, unless the point is made and found to be otherwise ; in which 
case the presiding officer could not properly take notice of the motion. 

In general no proposition or question can be acted upon except on motion of 
a member. The manner of proceeding is for the member to rise in his place, 
and say, " Mr. Chairman." _ Before he can proceed it is expected that he will 
have the permission, or as it is termed, " recognition of the chair." The chair- 
man therefore responds : " The gentleman from," naming the district from 
which he is a delegate, or, "the gentleman on my right," or similar designa- 
tions. The rule in deliberative assemblies being that no member shall be 
addressed or spoken of by his name where it can be avoided. The person offer- 
ing the motion, being recognized by the chair, proceeds, " I move, sir, that,*' 
stating his motion. The member desiring to second the motion should rise an<1 
say, " I second the motion." Before any remarks upon the motion or proposition 
are in order, it must be stated by the chair. The chairman should say, " Gentle- 
men, it is moved that" (stating the substance of the motion). It is sometimes 
the practice for the chairman to say, " Gentlemen, you have heard the motion,"' 
and then proceed to put the question. But this is improper ; a motion is not tlitv 
property of the assembly, or, in other words, not a subject before them, until it is 
stated by the chairman. 

When a motion is made and seconded, it becomes the property of the assem- 
bly, and cannot be withdrawn or modified by the mover except by leave of the 
assembly, on a motion made for that purpose. 

After the chairman has stated a motion, which he may do without rising, if 
no member interposes, he should proceed promptly to put the question to the 
assembly ; this he does by rising, when he will say, " Gentlemen, those in favor 
of the motion will say aye" — "those opposed will say no." If it is decided in the 
affirmative, he will say, " The motion has prevailed," or, "It is carried." If it is 
decided in the negative, he will say, "The motion is lost," or, "It is decided in 
the negative." 

After the vote has been declared by the presiding officer, it becomes final. 
Sometimes, when the vote is nearly equal, it is difficult to determine which has 
prevailed. In such case the presiding officer should not hastily announce the 
vote. He should say, " The ayes seem to have it," or, " The noes seem to have it,'* 
as the vote may appear. If no member interposes, he may then proceed and 
declare the vote as it seems to him to be. 



574 APPENDIX. 



But if any member doubts the vote as the chairman states that it seems to be 
he may rise and call for a division of the house. This may be done, as the call 
indicates, by dividing the members of the assembly — by having those who vote 
in the affirmative stand on one side of xhe room, and those in the negative stand 
on the opposite side; or by the "up-lifted hand " — the latter is the most usual — 
or simply by rising. In either case the chairman will direct the secretary to 
count the votes on each side, and report to him the result. The most usual and 
satisfactory course is by rising. 

When a member calls for a division of the house, in the absence of any express 
rule made by the assembly on the subject, the presiding officer should proceed 
thus : ,: A division is called for ; all those in favor of the motion will rise in their 
place, and stand until counted." When those in the affirmative are counted, 
and the number is reported to the chairman, he will announce the number, and 
say, " All those opposed to the motion w r ill in like manner rise and stand until 
counted," which being done, the chairman announces the number, and declares 
the motion carried or lost according to the fact. It is perhaps the duty of the 
chairman to count the vote, but it is competent for him to direct the secretary to 
do so. 

In case any member desires it, he may, at any time before the vote is declared 
t>y the chairman, call for the appointment of tellers to count and report the result 
of the vote, instead of leaving it to the chairman. This is done by the chairman 
on request of any member. It is customary to appoint one person from each 
bide, or each party in the assembly. When a division is desired, it must be 
called for before the result has been finally declared by the chairman. After he 
has declared the vote, it is final, and a division cannot be called for. 



Motions in General. — When a motion is made which the members are in- 
dined to meet by a direct vote, on the merits, it is put to the assembly, either at 
:mce or after debate, and disposed of. But as propositions may strike different 
minds in different forms, it often occurs that the assembly, on motion of some 
member, will dispose of the question in some other manner ; for this purpose 
there is a class of motions resorted to, called subsidiary motions, which may be 
entertained while the original or principal motion is pending, thus : 

1. The assembly may desire to suppress the proposition, either for a time or 
altogether. The proper subsidiary motions for this purpose are, the previous ques- 
tion and indefinite postponement. 

2. The assembly may be willing to consider the proposition, but not at that 
time. The usual motions in such case are, postponement to some future time, or to 
lie on the table. 

3. The form in which the proposition is submitted may be considered defective 
in some particular, a correction of which may require more deliberate consider- 
ation than the assembly can conveniently bestow upon it. In such case the 
proper motion is to refer the proposition to a committee. 

4. The proposition of itself may be satisfactory, if changed or qualified in some 
particular. In this case the proper motion is to amend. 

The previous question. — The practice under this motion has not been uniform. 
In legislative assemblies it is generally regulated by rules prescribed ; the usual 
course, however, in the absence of express rules, is this : When a member desires 
a vote to be taken on a proposition without further debate or delay, he moves 
the previous question, this being seconded, the presiding officer says, " The pre- 
vious question is moved. Shall the main question be now put ? Those in favor 
will say ' ave/— those opposed will say ' no.' " If carried in the affirmative, he 
will say, "The main question is ordered." In this case the assembly must come 
to a direct vote on the main question, without debate, and no motion can be en- 
tertained to dispose of the question in any other manner ; the main question is the 



PARLIAMENTARY LAW. 



575 



original proposition, with pending amendments if any, each of which is to be 
disposed of in its proper order.* 

Indefinite postponement. — This motion is decided without debate. If in the 
affirmative it removes the question from before the assembly as effectually as if 
it had never been pending. A motion to postpone to a day beyond the sitting of 
the assembly is of the same effect as indefinite postponement. 

Motion to postpone. — When it is desired to consider a proposition 9t some future 
day, the proper motion is to postpone or lay on the table. In either case the subject 
may be taken up subsequently by a vote of the assembly. 

Motion to commit. — When it is desired to render a proposition more perfect be- 
fore consideration, it is usually done by referring it to a committee. If there is 
a standing committee on that subject, the motion should be to refer to that com- 
mittee. If not, then to a select committee. A motion to refer to a select com- 
mittee, and a standing committee, may be made and pending at the same time ; 
in which case, the latter motion takes precedence, and should be firsi; put to the 
question. A part or the whole of a subject may be referred , or portions may be 
referred to several different committees. 



}Totioxs to Amend. — Amending a proposition is either by adding words, or 
taking words from it, or by transposition of words. This is accomplished under 
different modes of proceeding. Under this head may be classed the following : 

1. Filling blanks. — It often happens that propositions are introduced, leaving 
Hanks to be filled by the assembly, either with times and numbers, or with pro- 
visions analogous to those of the proposition itself. In the latter case, blanks 
are filled in the same way that other amendments are made by the insertion of 
v ords. In the former, propositions to fill blanks are not considered as amend- 
ments to the question, but as original motions, to be made and decided before 
the principal question. 

In case of blanks to be filled with time and number, motions may be made for 
that purpose, and the question taken on each by itself. Several motions for this 
purpose may be made and pending, before any of them are put to the question. 
The usual rule is to take the question, first, on the highest number, the largest sum, 
and the longest time. 

2. Striking out. — If an amendment is proposed by striking out a paragraph or 
certain words, and it is rejected, it cannot be again moved to strike out the same 
words, nor a part of them ; but it may be moved to strike out the same words 
with others, or to strike out a part of the same words with others, provided it 
becomes thereby a different proposition. 

3. Amendment by inserting. — If an amendment is proposed by inserting or 
adding a paragraph or words, and it is rejected, it cannot be again moved to 
insert the same words, or a part of them ; but it may be moved to insert the 
same with others, or a part of the same words with others, if the coherence 
really make them different propositions. 

4. Striking out and inserting. — This combination of propositions may be divided 
by a vote of the assembly. When the proposition is divided, the question is 
first to be taken on striking out ; if that prevails, then on inserting ; if the 
former is decided in the negative, the latter falls of course. 



* If the motion for the previous question is lost, or decided in the negative, the general rule is 
Mattel to be. that the main question is taken out of the assembly for the clay, so that there is then 
nothing before it to postpone, commit or amend. Cushing's Manual, § 17."). But in Illinois the 
practice is that the main question is still sending as if no vote had been taken. 



576 APPENDIX: 



5. Division of a proposition. — "Where a proposition is composed of two or more 
parts, which are susceptible of division into several questions, it is a compendious 
mode of amendment to divide the motion, if deemed advisable, into separate 
questions, to be separately voted upon. This may be done by order of the 
Assembly, on motion, as in other cases. 

The question as divided becomes a series of independent propositions. Assem- 
blies sometimes provide by express rule for the division of a question on demand 
of a member. 

6. Amendment to an amendment. — Custom or usage has established a rule 
whereby a proposition may be entertained to amend an amendment, but there 
pan be no amendment of an amendment to an amendment. 

Of the Order and Succession of Questions. — It is a general rule that where a 
proposition is pending before a deliberative assembly no other can be entertained 
until that is disposed of, unless it be either: first, a privileged question ; secondly, 
an incidental question ; or, thirdly a subsidiary question or motion. 

1. Privileged questions. — Questions of this nature are: 1. Motions to adjourn. 
2. Motions or questions relating to the rights and privileges of the assembly, or 
of its members individually. 3. Motions for the orders of the day. 

A motion to adjourn takes the place of all other questions whatever. It is not 
debatable, and ordinarily not susceptible of amendment. 

A motion to adjourn to a time fixed can be amended, by offering some other 
iime, and is debatable. 

Questions of privilege come next in order, and take precedence of all other 
motions except that of adjournment. They are such as concern the rights antl 
privileges of the assembly, or of its individual members. 

' Orders of the day come thirdly in succession, under the head of privileged ques- 
tions. When the consideration of a subject has been assigned for a particular 
day, by an order of the assembly, the matter so assigned is called the order of 
the day for that day. 

2. Incidental questions. — These are such as arise out of other questions, conse- 
quently are to be decided before those which give rise to them. Of this nature 
are : 1. Questions of order ; 2. Motions for the reading of papers, etc. ; 3. Leave 
to withdraw a motion ; 4. Suspension of a rule; 5. Amendment of an amendment,. 

Questions of order are those questions raised by any member as to a breach of 
any rule occurring. It is the privilege of any member to raise questions of order 
in such cases. 

Reading of papers brought before a deliberative assembly may be called for by 
any member who desires the reading. 

Withdrawal of motions is allowed on the part of the mover, by leave of the 
assembly, which is to be obtained by a vote on motion as in other cases. 

Suspension of a rule of the assembly may be granted by a vote thereof. This is 
usually obtained at the instance of a member to consider a proposition which 
would otherwise not be in order. 

Amendment of an amendment is allowable, as we have already seen ; the amend- 
ment to the amendment must be first put. 

3. Subsidiary questions. — These, as before remarked, are those which relate to a 
principal motion. Subsidiary motions in common use are: to lie on the table ; 

he previous question ; postponement, either indefinitely or to a day certain ; 
jommitment and amendment. 

To lie on the table, is a motion usually resorted to in common practice when the 
assembly desire to put a proposition aside without giving any expresison upon 
its merits. It is not debatable nor susceptible of amendment. It takes preced- 
ence of and supersedes all other subsidiary motions. If decided in the affirma- 



PARLIAMENTARY LAW. 577 



five, all motions or propositions connected with the principal question, are 
removed with it from before the assembly, until taken up by a vote thereof.' 

The previous question stands in equal degree with all other subsidiary motions 
except the motion to lie on the table. f 

The motion to postpone is either indefinite, or to a time certain ; and in both theso 
forms, may be amended ;— in the former by fixing a time certain ; in the latter by 
substituting one time for another. The latter case is treated like filling blanks. 

A motion to commit, or recommit, may be amended by substitution of ono kind 
of committee for another, or by enlarging or diminishing the number of the 
committee as proposed, or by instructions to the committee. It stands in the 
same degree with the previous question and postponement— but it takes preced- 
ence of a motion to amend. 

A motion to amend stands in the same degree only with the previous question 
and indefinite postponement, and neither, if first moved, is superseded by 
the other. But it is liable to be superseded by a motion to postpone to a dav cer- 
:am. It may also be superseded by_ a motion to commit. 

The following example is given to illustrate the successive order of questions : 
Suppose first a principal question is proposed, second, a motion is made to amend 
the principal question, third, a motion to commit, fourth a question of order arises 
in the debate, which gives occasion to, fifth, a question of privilege, and sixth 
a subsidiary motion, as to lie on the table. All these questions may be pending 
at the same time, and take rank in the order named. The regular course of 
proceeding requires tho motion to lie on the table to be first put. If this is 
negatived, the question of privilege is then settled ; after that comes the question 
of order, then the question of commitment; if that is negatived, the question of 
amendment is taken ; and lastly, the main question. 

Of reconsideration.— A deliberative assembly may reconsider a vote already 
passed, whether affirmatively or negatively. For this purpose a motion is made, 
as in other cases, that such a vote be reconsidered ; if it prevails, the matter 
stands before the assembly in precisely the same state and condition as if tM 
vote reconsidered had never been passed. In the absence of any express ru^ 
of the assembly, a motion to reconsider is made in the same manner as anv 
other motion. J 

Of committees —The business of deliberative assemblies is facilitated by aid of 
committees; they are of three kinds, select committees, standing committees and com* 
mdtee of the whole. 

Select committees are those appointed to consider a particular subject 

Standing committees are those who are appointed to continue during the wnoi- 
term of the assembly, to consider all matters of a certain character named during 
'iie time. 

A committee of the whole is a committee comprising all the members of the 
assembly to consider any subject referred to them. 

Select and standing committees, in the absence of any express rule or vote of 
the assembly, are appointed by the presiding officer. When a motion is madj 

I- ™e appointment of a committee, the motion usually includes the number of 
wnich it is to consist. If no vote is taken as to the manner of appointment, the 
presiding officer should proceed to appoint. It will be unnecessary for him to 
inquire of the assembly as to how they will have the appointment made ; the 
tact that they have given no expression on the subject implies that the appoint- 
ment shall be made by the chair. 

The person first named on a committee is considered the chairman ; but in the 
absence of any rule to the contrary, the committee may make choice of some 
other person as chairman, if thev desire to do so. 

VV hen a committee have considered a proposition, they present the result to 
the assembly, which is called their report. It is usuallv in writing, and is 
announced to the assembly by the chairman, or some member of the committee 
selected for that purpose, *ho rising in his place, says, "Mr. President" for Mr. 



57C3 APPENDIX. 



Chairman, as the case may be], "The committee to whom was referred the subject 
11 of [stating the matter referred], have had the same under consideration, and have 
"instructed me to report that " [here follows the report]. 

After the report is made, the proper motion is, on the reception of the report ; 
but in practice the report is received without such motion, unless objection is 
made, in which case a formal vote is necessary. After the report is received, the 
committee are discharged without any action of the assembly. 

Tho report thereupon becomes the property of the assembly, and the question 
recurs on its adoption. The presiding officer will proceed and so state the ques- 
tion, without any formal motion being made. 

After a report is adopted, tho recommendations of tho committee become the 
of the assembly. 



Conclusion. — The foregoing is a brief summary of the general principles 01 
parliamentary law for the regulation of proceedings in deliberative assemblies 
Limited space does not admit of an extended treatise on the subject ; but suf- 
ficient has doubtless been given for ordinary purposes. 

In conducting proceedings in deliberative assemblies, much depends upon the 
presiding officer. According to the popular idea of such a functionary, he 
becomes little more than a graven image, or fixed statue, when in fact he should 
be tho most active man in the assembly. He should have his attention in all 
directions as much as possible, at the same time, and be quick to recognize any 
member who rises and addresses him. As soon as a motion is offered he should 
proceed promptly, without hesitation or delay, and state it, in a full and clear 
voice. If no one rises to speak to it, he should proceed just as promptly to put 
the motion. It is no part of his duty to invite debate. 

An example of promptness and diligence on the part of the presiding officer 
gives spirit to the assembly, and business is conducted with more dispatch an<? 
greater satisfaction. 



; 



INDEX 



Page 
Abstract. 

Of returns of election— township organ- 
zation 34 

Keport of commissioners to auditor 37 

lload tax — county and town collectors 
furnish 221 

Tax paid over according to 221 

Acceptance of Office. 

Notice of— by pouudmaster 85 

Form of notice 86 

Acknowledgment of Bond. 

Form of certificate 93 

Accounts. 

Supervisor to keep 95 

Board of town auditors examine and 

audit, of town 99-100 

File with, town clerk— when 100 

■Clerk to read at next annual town meet- 
ing 100 

Auditor may require,to be verified 100 

Form of account against town and affi- 
davit 100 

Certificate of audited, delivered 10 town 

clerk 100 

Record of audited, kept by clerk 102 

How audited and by whom paid 102 

Commissioners of Canada thistles, audi- 
ted 112 

Annual, to board be made by highway 

commissioners 136 

Form of annual to auditors 137 

Overseers to render to commissioners of, 

etc 216 

Form of overseer's annual 216 

Overseer of poor to keep accurate— file 

with county clerk, when 338 

County agent keep accurate account of 

relief 338 

Of county collector, manner of keeping 455 
Of county clerk with collector— man- 
ner of keeping 455 

Account Book. 

Supervisor to keep 95 

Town to buy 95 

To be delivered to successor „ 96 

Form of supervisor's book 96 

Town clerk to keep, of auditor's certifi- 
cates 102 

Highway treasurer to keep 129 

Adjournment. 

Meeting, hearing reasons for or against 

road, etc 154 

Form of notice of 155 

Advertisement. See Judgment. 
For bids — contract for repairs roads 
and bridges 147 



Page 
Advertisement— Continued. 

Forbids— constructing hard roads 228 

Form, notice for bids 228 

For judgment and sale of land for taxes 417 

When published— requisites of. 417 

When publisher unwilling to Insert 418 

Figures may be used in 419 

When county collector advertise again.. 419 
Printers, etc., to give collector four cop- 
ies of, etc 420 

When printer paid for , 420 

Error in, printer to lose pay for 421 

Affidavit. 

Town clerkmay take 97 

Affidavit of correctness of bill against 
town 100 

Attached to estimate of cost of bridge... 139 

Form of overseer of highways upon re- 
turn of list to supervisors 215 

Form of non residence or unknown 
owner 164 

Form of service of notice of appeal on 
three petitioners 185 

Form of service of notice of appeal - 
upon commissioners etc 185 

Sworn statement of commissioners for 
services 191 

Form of, to delinquent list 421 

Form of, by sheep owner showing dam- 
age 464 

Form of correctness of bill against coun- 
ty ~ 522 

Agreement. 

Form of, on division of town and dis- 
position of property 44 

Damages opening road may be agreed 
upon 159 

Form of, by owner 160 

Form of— damages for material for hard 
roads 231 

Damages, on appeal— supervisors may 
make 184 

Form of, to divide and maintain divi- 
sion fence 306 

Animals. 

Assessor to list dogs 460 

County clerk to charge license fee. 460 

License fund, how paid out 460 

Surplus to go to road and bridge 

fund 461 

Payment not to bar action at law. 461 

Affidavit and procedure 462 

Witnesses, fees of 463 

Form of supervisor's record 46:} 

Animals not to run at large 464 



580 



INDEX. 



Page 
Animals — Continued. 

What deemed running at large. . 464 
Pounds, poundmasters, duties and 

fees of 464 

Poundmasters to enforce law 464 

What counties and townships ex- 
cepted 464 

When estrays may be taken up.. 465 

Who may not take up 465 

Not to use before advertising, ex- 
cept 465 

When several estrays are taken up 465 

Notice of taking up, form of 465 

To be recorded by township clerk 466 
Swine, penalty for enlargement... 466 

Hog cholera, duty of owner :. 466 

Conveying diseased swine unlaw- 
ful , 468 

Penalty for conveying 466 

Sale of estrays, how conducted.. 5? 

Decisions relating to estrays 57 

Township by-laws relating to es- 
trays m 

Notice by justice to owner of.... 60 
Notice where owner unknown.... 60 

Form of docket entry. 6ft 

Poundmaster's notice of sale.... 61 



Annual Statements. See Statements. 

Appeals. 

In road cases from assessment, opening 

road— proceedings 157 

On establishing private roads, etc 179 

Boad appeals 183-190 

Party may appeal from decision of com- 
missioners 183 

Present petition asking for 183 

Summons in— form 184 

Form of petition for, from decision of 

commissioners 183 

Form of notice to commissioners of, ap- 
peal 185 

Form of affidavit of service of notice 185 

Form of service on three petitioners 185 

Trial of— power of supervisors 186 

Form order of supervisor, from decision 

in favor of road 1S6 

Form of order, etc., from decision, refu- 
sing road 187 

Party appealing pay costs 1.87 

Pile bond with justice or clerk ife7 

Form of bond on appeal from decision 

of commissioners 189 

Majority of supervisors may decide........ 167 

Road on county or town line— proceed- 
ings 189 

Form of petition for in case of town line 191 
Form, drainage commissioners classifica- 
tion of lands for assessment 258 

Form of bond on such appeal 259 

Town clerk to summon supervisors 259 

Proceedings on such appeal 260 

Appeal to county court, by whom 262 

Form of bond on such appeal 262 

Hearing and judgment " 262 

Taxation of costs, appeal 262 

Not delay collection of drain assessment 263 
Form classification of lands for assess- 
ment in special districts 284 

Form tax list in special districts 285 



Page 
Appeals — Continued. 
In cases of county ditches to drain 

swamp lands 299 

How and to whom taken 300> 

Foim of bond for 300 

Power of board of appeal 301 

Form of application and statement for... 301 
Form of summons to supervisors to hear 301 

Form of notice to appellant 301 

Taxes— appeal from judgment for 424 

In contested election cases 497 

De ision county board on claims 522 

t orm of appeal bond to circuit court 523 

Appointment to Office. See Board of 

Appointment. 
County Board— appoint town officers, 

when 30 

Treasurer— commissioners of highways 128 

Overseers of highways appointed: 20s 

Filed with town clerk 210 

Drainage commissioners; when 280 

Treasurer of special drainage commis- 
sioners 291 

Keeper and physician of poor house 338 

Agent in charge of poor house * 33$ 

Assessors and deputies 379.380 

Secretary state board of equalization 392 

Deputy collectors 40T 

Commissioner for new county 512 

County clerk pro tern 534. 



Arbitration. 

Expense of repair -roads between towns, 

submitted to 184 

Assessor. 

Duties of, in disposition of property in 

division of towns 44 

On annexation of towns 45 

Duties in division of personal property 

when town altered or divided .". 46 

When to meet for purpose.... 4fi 

Meeting how called— notice to be given 46 

When to give notice of town meeting 66 

One of judges of election in town 6* 

Elected at annual town meeting 71 

Term of office...... 71 

To subscribe oath when elected 85 

On refusal to serve to forfeit 87 

When to be one of board of town auditors 99 
Fees and compensation allowed to ...105, 386 
When may examine and list property... 363 
Return schedule of capital stock, etc., 

to county clerk 367 

Assessors and. deputy, how appointed 37'J 

Duty to call for assessment books , 379' 

Term of office— subject to penalties, etc. 380 

Vacancy, how filled 3^0 

Appoint deputy, when 380 

Subscribe oath 380 

Failure to take oath— office vacated 380- 

To view land and determine value.. 381 

Report improvements made, etc 381 

Report propertv discovered since return 381 

How assess personal property 381 

Owner sick or absent; leave schedule 382 

May examine person under oath, when.. 382 
Designate school district on assessment.. 382 

When property in several districts 382 

When to fix value of personal property.. 38< 
To furnish owner statementof valuation 38* 
Use forms adopted by auditor, etc 38S 



INDEX. 



581 



Page 
Assessor— Continued. 

To add up columns of oooks, etc 384 

Give notice of meeting of town board to 

review 384 

Return total of all books 385 

Return assessment books verified 385 

Form of affidavit to 385 

Return schedules and statements with... 385 

Books filed with county clerk 385 

When to meet to review assessment 386 

Report action on review 386 

Pay of assessors and deputy, how fixed.. 386 

To make detailed account of service 386 

When not entitled to pay 387 

May administer oath, when 382,453 

Assess bridge on State border as real 

estate 458 

Duty to collect siatistics 461 

List dogs for taxation 461 

Assessment. See Assessor— Damages— Tax. 
Damages, entering land to open ditch.... 126 

To pay damages, laying out road 134 

Damages in road cases— jury 160,169 

Highway labor — commissioners to make 203 
Road tax— rolls prepared by commis- 
sioners 204 

Notice of— road t ax— posted by town clerk 207 
By township insurance co. to meet loss 347 

Review of— by town board 383 

Assessor give notice of meeting to review 384 
Failure not vitiate assessment, except.... 384 

County board equalize 387-389 

Equalization annually, in July 387 

County clerk report assessment to audi- 
tor of state 389 

Requisites of such report or abstract 390 

:Not all returned— duty of clerk 390 

Not returned to auditor— duty of state 

board of equalization 394 

Double— refund payment made 448 

Not completed in time fixed— not vitiate 452 

Special — when returned or barred 452 

Informality not vitiate 453 

Non delivery of tax book not vitiate 453 

Of bridges on state borders as realty 458 

Assessment Books. 

County clerk make up for towns 377 

How made up; ruling, etc 377 

General requisites of. 378 

Separate books for cities, towns, etc.: 

when 378, 379 

Rate of equalized tax entered 378 

Tax extended on— for 4 years 378 

How books made up in township, etc. 378 

County clerk to compare 379 

To be ready Mayl 379 

Assessor to call for 379 

Lands not entered, clerk report to asses- 
sor 379 

Assistant Supervisor. 

Election of. 71 

No power as town officers 97 

Members of county board 97 

A«torney General. 

When elected— term of office 469 

Auditors. See Board of Town Auditors. 

Auditor of Public Accounts. 

Election for or against township organ- 
ization certified to 34 

Receive abstract report of division of 
county into towns 37 

When names of towns are alike — pro- 
ceedings by 37 



Page 
Auditor of Public Accounts— Con- 
tinued. 
Keep record of names and boundaries of 

towns 37 

Register bonds issued by drain district... 289 

Certify registration to county clerk 289 

Railroad co's schedule to be presented to 

equalization board 370 

Also of telegraph co's property 373 

Notify county clerk of action on decis- 
ion of county board 388 

When decision not final; auditor may 

apply to supreme court 388 

In such case file statement of fact 389 

Duty of auditor in such case 389 

Appeal of— not delay collection of tax... 389 
county clerk transmit to— abstract of 

assessment 390 

Requisites of such return 390 

On failure so to return, auditor estimate; 

how 390 

Duty to certify to county clerk, assess- 
ments on capital stock., 393 

And, the aggregate stock of corporations 393 
And, taxation of railroad track and roll- 
ing stock , 393 

Report to county clerks, action of equal- 
ization board 395 

With governor and treasurer ascertain 

rate of tax 3% 

Compute and certify to county clerk tke 

rate 396 

Give collector duplicate ceitificate 443 

Authorized to purchase property for 

state; when 447 

When locality does not pay, duties of 449 

Obtain abstracts of 111. Centr. and canal 

lands sold and cause taxed 450 

Give instructions to clerks, etc , advise, 

etc 451 

Instructions to be strictly followed 451 

Publish revenue act 451 

When elected— term 451 

To sell property of state, when 459 

Ballot. 
In vote on township organization — re- 
quisites 34 

How canvassed 34 

Discontinuing— form 40 

In election uniting towns, form of— can- 
vass 48 

On change of meeting place— form of.... 68 

Town officers elected by 71 

Boxes for, to be supplied by town 74 

Canvass of, when in several boxes 75 

Where deposited when town is in limits 

of city 75 

Returned to town clerk with certificates 75 
Form of, on vote to borrow money to 

build bridge 141 

To build bridge between towns 144 

To adopt labor system 202 

To construct hard roads 2"2<5 

General election to be by ballot 477 

Requisites of. 477 

Form of 477 

Form of cumulative ballot 478 

Manner of depositing and receiving 478 

Canvass of— proceedings 479 

Irregular; not received 479 

Preserved; filed in order— when de- 
stroyed 479 

Examined on contest of election 480 

Form of return to canvassers 480 

To transfer territory to new county 508 

To form new county 518 



582 



INDEX. 



Page 
Ballot- Continued. 

To fix county seat 512 

To vote additional tax 520 

To issue bonds and raise tax to meet 521 

Ballot Boxes. 

Polling closed— where to be taken 74 

Town to supply at elections as to organ- 
ization under township law 74 

County board to provide 474 

Description of box 474 

Before ballot cast, to be opened and ex- 
hibited 477 

Bankers. 
Personalty of; where listed for taxation 359 

Rules for listing the same 364 

Banks. 
State and national; how assessed and 

taxed 367 

Benefits. See Special Assessment. 

Assessment of, for damages by road 166 

" " " by drain 253,260, 282 

Bids. 

Advertising for 147 

Rejection— successful bidder 148 

Contracts for hard roads 228 

Form of notice for 228 

Opening— bidders to give bonds 229 

On drainage contracts 267 

Blanks. 

For election— county clerk supply 474 

Board of Appointment. 
Justices, supervisor and town clerk to 

constitute 88 

Vacancies in office, how filled by 88 

Vacancies in board, how filled— excep- 
tion 89 

Warrant to be filed in office of town clerk 90 

Fees allowed to 106 

Board of Equalization. 

State board; now composed 391 

Members, how and when elected 391, 471 

Vacancy filled by governor 391 

Members take oath 391 

Organization, quadrennial 392 

Quorum; two-thirds of whole number.. 395 
Select chairman at first meeting and ap- 
point secretary 392 

Oath administered to secretary 392 

His duties 392 

Annual meeting of board 392 

To classify property for equalization 392 

Rule for equalization of personalty 392 

Assess capital stock of corporations 392 

Railroad property on schedules re- 
turned 392-393 

Railroad track and rolling stock; dis- 
tributing values to counties, towns, etc 393 

Telegraph property, on capital stock 394 

Lands; manner of equalizing 394 

Town and city lots; how equalized 394 

Estimate values, in absence of returns... 394 
Empowered to examine persons and pa- 
pers 393 

Results to be combined in one table 394 

Secretary to certify results to auditor 395 

Auditor to certify results to county 

clerks 373 

Proceedings, to be published 395 

Cost of publication ; how paid 395 

Fuel, printing, rooms, etc.; how furn- 
ished 395 

May employ secretary, janitor, page, etc 395 
Compensation of members and employes 395 



Page 
Board of County Commissioners. ■ 

Of Cook county— how elected .529 

Qualifications— term of office 530 

Oath— powers— duties 530 

Restriction as to contracts, expenditure 

exceeding $500 530 

Appropriations; how authorized 530" 

County clerk; clerk of board 531 

Board of Health. 
Supervisor, assessor and town clerk to 

constitute 105 

Powers of— exception as to town within 

incorporated city 105 

Records of proceedings to be kept by 

town clerk .*. 103 

Report of, to annual meeting 103 

Compensation of members 104 

Expenses, etc., audited by town auditors 104 

How paid 104 

Board of Supervisors* 
Make appropriation to destroy 

Canada thistles 112 

Annua' meeting— when 540 

Regular meetings— when 540 

Special meetings — how called 541 

Organization of board; how 541 

Certificates of election— examina- 
tion 541 

A majority determine a'l questions 542 

Session with open doors 542 

Chairman may administer oath... 542 
May appropriate money for roads 

and bridges 542 

Change boundaries of towns 542 

And create new towns 542 

Proceedings on naming or chang- 
ing name of town 542 

Board of Town Auditors. 

To settle with supervisor annually 9ft 

Supervisor to lay accounts before 9ft 

Who shall constitute 99 

Absence of members— how supplied 99 s 

Meet semi-annually 99 

Examine accounts of officers 99 

Examine and audit claims against town 109 
Examine and audit compensation of 

towm officers 10O 

Audited accounts filed with town clerk... 100 

To be read at next town meeting 100 

May require accounts verified 100 

Form ot bill against town and affidavit. 109 
Certify to claim— certificate delivered to 

town clerk 101 

Aggregate amount certified to county 
clerk to be raised for town purposes- 
exception 101 

Formof certificate of claims allowed 101 

What deemed town charges 101-102 

Form of certificate to county clerk of 

accounts audited 102 

Town clerk to be clerk of 102 

Record of proceedings by town clerk 102 

Accounts audited— by whom and how 

paid 102 

Audit expenses of board of health 104 

Fees of. 10ft 

Appoint commissioners of Canada this- 
tles 109 

To audit accounts of. 112 

May consent to additional levy for roads 

and bridges 133 

Audit compensation of commissioners of 

highways 19ft 

Bond— Indebtedness. 
For^money borrowed to build bridge 141 



INDEX. 



583 



Page 
Bond— Indebtedness— Continued. 

Forja of 142 

Issued as work progresses 142 

Denominations— interest 142 

Not sold less than par 142 

Town to provide for payment of 142 

Issued for repairs— proceedings— in; er- 

est— sale— payment 145 

Supervisor and town clerk to issue 1-15 

Issued by drain district to be recorded... 288 

And registered by state auditor 288 

Accrued interest on— taxable 360 

Bond — Indemnity. 

Successful bidder to give— form 148 

Form of bond for costs 149 

Appeal on verdict assessing damages 187 

Form of appeal bond 189 

For costs— form 198 

On appeal from drain commissioners' 
classification of lands for assessment... 258 

Form of bond on such appeal 259 

Form of bond on appeal to county court 262 

On petition for special drain district 276 

On appeal— county ditches— form 276 

Contractor for support of poor to give 335 

Form of bond by 336 

Appealing from judgment for taxes 424 

Requisites of 424 

Who not eligible as surety 425 

Bond— Official. 

Collector to give 86 

Failure to give, a refusal to serve 86 

Supervisor to give to town 92 

Form of supervisor's 92 

Form of approval by town clerk 92 

Form of certificate of acknowledgemt.. 93 
When bond forfeited, town clerk to sue.. 92 
Treasurer of commissioners of high- 
ways to give 129 

Form of bond of 129 

Treasurer of commissioners -permanent 

road fund 227 

Form of. 227 

Supervisor, as treasurer of drainage dis- 
trict 236 

County treasurer treasurer special dram 

district 236 

Form of district drainage treasurer's 236 

Of district drainage treasurer 263 

Form thereof 264 

Of collector ot drainage assessments 266 

Form of same 266 

Overseer of poor to give 334 

Secretary and treasurer of township in- 
surance co 345 

"own and district collectors to give 400 

Form of bond by 400 

Approved by county board 400 

To be recorded— lien on property 401 

( ounty collector to give— f>rm of 404 

Approved by county board, etc 405 

Lien against propeity 405 

Ap rov«l of otherwise, and by auditor.. 405 

Sureties on, how discharged 406 

Suit on collector's, when brought 414 

Liability on, of collector 445 

Form of bond by supervisor for dog li- 
cense fund 462 

county clerk to give — form 533 

Books. 

Successor to demand 87 

Demand for, incase of vacancy 87 

Outgoing officer to deliver 87 

Executor of officer to deliver 88 

Of account— supervisor to keep 95 



Page 
Books— Continued. 

Form of supervisors' book 96 

Town clerk's record 98 

Estraybookto be kept x 108 

Of town and district collectors— how de- 
livered 40L 

Tax book of railroad property to coun- 
ty collector 402 

So of capital stock of telegraph co 402 

Warrants to be annexed to 402 

Borrowing Money. See Bridges.— Bonds. 

Boundaries. 

Town— where divided by creek 36 

Auditor to record town 37 

Alteration of— town *1 

Declared by county board when towns 

unite 48 

Drain commissioners fix boundaries of 

combined drainage district 248 

Of counties 521 

Change of— by transfer of terri- 
tory—petition 5'2l 

County board order elections as to 522 
Notices and publication thereof... 522 

Form of ballot— effect of vote 522 

Restriction as to size, within coun- 
ty bounds 522 

Supervisors may change town.... 542. 
Bounty. 

On English sparrows 107 

Bridges. See Roads and Bridges. 

Electors power to raise money for 53 

For roads and bridges in another town... 54 

County to aid in building 138 

Petition tor, presented to county board... 138 

Form of petition 139 

Joint fund— how expended 139 

Surplus, lapse into county treasury 139 

Commissioners to estimate cost 139 

Affidavit to estimate 139 

Emergency, petition presented, when.... 139 
Bridge requiring large sum— proceed- 
ings 140 

Petition for special town meeting to bor- 
row money 140 

Town clerk post notices 140 

Form of petition 140 

Bonds for money borrowed— form 142 

Denomination of bonds— interest— not 

sold less than par 142 

Payment of— town to provide for 142 

Over streams dividing towns and coun- 
ties 143 

Built and repaired at expense of both 143 

Joint contract between— form of. 143 

Refusal of either town to contract— pro- 
ceedings 144 

Election to borrow money.. 144 

Bonds may be issued 145 

Repairs on, built by joint contract 145 

Refusal of town to aid in repair— notice 

form 145 

Commissioners may contract to repair... 146 
Notice of letting— form— contract— form 146 
Contracts for roads and bridges on town 

lines- form 147 

Advertise for bids 147 

Rejection of bids— contract and bond of 

bidder— form 148 

When contract payable 148 

Notice as to fast driving on, to be put up 148 

Penalty for fast driving on 148 

Destroying or injury 198 

For cattle crossing under road 199 



5S4: 



INDEX. 



Page 

B ridges— Continued. 
Driving steam engine over— manner of.. 233 
Penalty for violating statute as to man- 
ner of. 233 

On state border; how assessed 458 

Broker. 

Personal property of, when listed 359 

Rules for listing of. 364 

Pawn-broker— rules for listing of 365 



Burial Grounds. 

To belong to town where situated after 
division 47 

By-Laws. See Rules— Penalties. 
Form concerning cattle running at large 59 

Electors of town, power to make 60 

Of town clerk to publish 63 

When to t ike effect 63 

Clerk to record in record book 98 

AstoCtnada thistles 112 

County board make, tor jail and work 

house 

Township insurance co. may alter and 

amend 345 

Canada Thistles 
Electors, power to provide for destruc- 
tion of. 56 

Commissioners of, how appointed 109 

Take oath— term of office— compensa- 
tion — removal 109 

Duties of commissioners 109 

When thistles controlled and treated by 

commissioners 109-110 

When owner of land not agreeable, com- 
missioners' duties— proceeding 110 

Decision to be filed with town clerk 110 

Owner may appeal from decision— pro- 
ceeding 110 

Decision of commissioners affirming ac- 
tion—each tract declared nuisance 110 

Treatment on such— tract— expenditure 

limited 110 

Form of appeal from decision of commis- 
sioners 110 

Duty of commissioners to prosecute Ill 

Report annually to supervisor Ill 

xveport filed with town clerk Ill 

Read at town meeting— requisites of. Ill 

Form of report ot commissioners Ill 

Form of decision of commissioners of 

highways on appeal Ill 

Accounts audited by town auditors 112 

Board of supervisors or county commis- 
sioners may assume control of 112 

Appropriations from county treasury 112 

Penalties, by-laws or regulation for 112 

Form of decision of commissioner of 

Canada thistles 112 

Canvass of "Votes. See Votes. 
Capital Stock. 

Of all corporations taxable 351 

Shares of, of banks and banking co's tax- 
able 351 

Of companies and associations ; by whom 

valued for taxation 354 

Listed where principal office located 357 

No principal office; then where business 

done 357 

Enumeration of corporations required 

to list property 366 

Of banks; how assessed and taxed 367 

Shares of national banks not held in 
state not required listed 368 



Page 
Capital Stock— Continued. 

Of telegraph co's to be scheduled 373 

Of corporations assessed by state board 

of equalization 393 

Carriage. 

Defined 193 

Catttle Guards. 

Railroads to maintain, when 319 

Causeway. 

Penalty for injuring, ete 198 

Cemetery. See Burial Grounds. 
Certificate. See Forms 
Election returns— township organization 34 

Acknowledgment of bond 93 

Supervisor's account 96 

Town clerkto file 97 

Town clerk to deliver to supervisor, of 

votes to raise money 98 

Form of, by town clerk, of votes for rais- 
ing money, etc 98 

Form of , by to w n clerk to copies of papers 

and records .' 98 

Town clerk to make, of tax for town pur- 
poses 98 

Of auditors to accounts audited by them 101 
Of town auditors to county clerk, when 101 

Record of, made in auditor's record 102 

Form of certificate to county clerk of 

accounts audited 103 

Form of town clerk's certificate toclaims 

audited 193 

Additional tax levy for roads and bridges 133 

Of rate per cent.— roads and bridges 135 

Form, town clerk to copy of certificate.. 135 
Form of, and application for, jury in road 

cases 163 

Form of, town clerk to copy of road rec- 
ord 174 

Of levy— tax for hard roads— form 226 

Township insurance companies to have 348 
Of equalized rates of taxation in collect- 
or's book by county clerk 400 

To be attached to collector's bond of ap- 
proval 405 

Form of by county clerkto record of de- 
linquent tax payers 426 

Of purchase of delinquent lands assigna- 
ble 428 

Collector to file auditors, to settlement 
with county clerk..... 443 

Of election of presiaential electors, by 

whom made 468 

Of election, county clerk to make 485 

Certificate of Election. 

County officers shall receive, on applica- 
tion 485 

Governor to transmit certificate of elec- 
tion to state officer elected 468 

Certificate of Tax. See Tax Certificate. 
City Council. 

Fix voting places— appoint judges of 
election 75 

May request territory in city organized 
as town 106 

Powers of towns when vested in city 
council 107 

May unite office of town and city clerk.. 107 

May continue office of highway com- 
missioner 107 

Appoint poor master ; 107 



INDEX. 



585 



Ciiy Council— Continued. 

Kegulate number of justices— limit, etc. 

Vacancy in office rilled by 

May appoint commissioner of Caiwda 

thistles 

City. 

Territory in, organized as town 

Population required for town 

city council to requestsuch action 

Territory of city in county under town- 
ship organization, deemed a town 

Town officers elected at annual char- 
ter election 

General elections in, at same place as 
city elections 

Judges and clerks of, how appointed 

Powers vested in towns exercised by city 
council 

Council of may unite office of town and 
city clerk 

Office of treasurer and town collector 
united 

Office of highway commissioner discon- 
tinued 

Office of supervisor and poor master 
separated 

Poor master appointed by council 

Council may regulate number of justices 
and constables 

Number elected not to exceed limit al- 
lowed by law in other towns 



Vacancies in office filled by council. 
Road tax within limits 



Civil Engineer. 

Employment by commissioners of com- 
bined drainage 

Employed to survey and estimate drains, 
when 

Record of his maps, etc 

Form of engineer's report of survey 

Employment by commissioners of union 
drain district 

Maps, etc., to be recorded 

Clerk of Circuit Court. 

When elected 

Vacancy in, how filled 

Clerk: of County Court. 

When elected 

. Vacancy in, how filled 

Clerk of Criminal Court. 

When elected 

Vacancy in, how filled 

Clerk of Supreme Court. 

When elected 

Vacancy in, how filled 

Clerk of Drainage Commissioners. 

Town clerk, actas 

His duties 

Keep drainage record 

-Same as to combined drainage 

On appeal from classification of lands to 
summon supervisors 

Form of summons 

Same ; vacancy of supervisor 

County clerk, clerk in special district 

Give notice to elect commissioners 

Record, maps, etc., in drainage record... 

Clerks of Elections. 

Town clerk of at town meeting 

In towns and incorporated city, how ap- 
pointed — take oath ." 

Of election, how appointed 

Take oath— form of. 



107 
1U7 

109 

106 
10(5 
100 

106 

10G 

107 
107 

107 

107 

107 

107 

107 

107 

107 

107 

107 
201 



245 

251 
251 
251 

280 
280 

470 
500 

470 

500 

470 
500 



469 
500 

233 
235 

235 
243 

25; I 
2fi0 

26m 
27 '.) 
27 'J 
280 

74 



Page 
Clerks of Elections— Continued. 

Of election -compensation! 480 

Neglectof duty— Penalty 491 

Of election, enter names on register, etc... 505 
Cleric pro tern. 

At town meeting— oath 82 

Cockle Burr. See Noxious Weeds. 
Collector. 

When to give notice of town meeting 66 

One of judges of election in town 68 

Elected at annual town meeting 71 

Term of office 71 

To give bond 86 

Failure to give bond deemed refusal to 

serve 86 

When to be one of board of town auditors 99 
Make abstract road tax due each district, 221 
Deliver abstracts to commissioners of 

highways 221 

Bond for collection of drainage assess- 
ments 266 

Form of the same 266 

Resignation of town or district 403 

Final settlement for taxes 438 

Partial settlement of county 440 

Final settlement for state taxes 441 

Bondsman; who not eligible 445 

Bond held as security 445 

Suits against 445 

Commissioners of Highways. See 
Drainage Commissioners. 

Elected at first election -term 38 

Term - determined by lot 38 

Form for determination of term of office, 38 
Term of office when elected in new town, 43 

Hold over in contiguous towns united 48 

Tax voted lor bridge adjoining town, paid 

on joint order of 54 

Election of, at annual town meeting — 

term 73 

Subscribe oath when eleoted 85 

Refusal to serve, forfeit $25 87 

Town auditor to examine accounts of. 100 

Office discontinued in city 107 

Appeal from commissioner of Canada 

thistles to 110 

Form of decision in case of appeal Ill 

Treasurer of, make statement of funds 113 

Duties of commissioners 116-137 

Have care of roads and bridges 116 

Keep in repair— build bridges when nec- 
essary 116 

Construct permanent roads 118 

Employ superintendent 120 

Prohibited from interest in contracts 121 

Establish, widen, alter and vacate roads... 121 
Cause roais laid out, etc., ascertain and 

enter of record 122 

Form of order ascertaining road imper- 
fectly described, etc 122 

Purchase tools, etc 122 

Erect guide boards 123 

Destroy weeds, etc 193 

Prevent plowing on road 123 

Form of consent to plow on road 123 

Contract to lay drain, when— form of con- 
tract 124 

Organization of board— officers— meetings 127 

Form, notice to call special meetings 128 

Choose one of their number treasurer 128 

Treasurer to receive and have charge of 

moneys 129 

Treasurer to pay out on order of, only 129 

Treasurer, form of order of commission- 
ers on 129 



586 



INDEX. 



Page 
Commissioners of Highways- Con- 
tinued. 

Treasurer, give bond, form of 129 

Treasurer, keep account in book of money 

received and paid 129 

Fix compensation of treasurer 129 

Meeting of— when held— keep record of... 129 

Make list for poll tax 130 

Cause notice of poll tax to be paid 131 

Form of list— poll tax assessor 131 

Form of order assessing poll tax 1-sl 

Bring suit for poll tax unpaid 132 

Form of notice to pay poll tax 132 

Form of service of notice 132 

Form of docket entry 132 

Meet semi-annually to determine rate 133 

Form of determination of rate 133 

May levy additional rate §133 

Make certificate for greater levy— form... 134 

Levy tax for road and bridge purposes 135 

Form of certificate of rate per cent 135 

Make report to town auditors 136 

Form of order of, on treasurer, for dama- 
ges 13"> 

Form of report to town auditors 137 

Petition county board— aid to build bridge 138 

Form of petition 139 

Make estimate of cost 139 

Form of estimate 139 

Petition for special town meeting to bor- 
row money 140 

Form of petition 140 

Direct issuing of bonds for borrowed 

money 142 

Make joint contracts with other comis- 

sioners 143 

May be sued jointly on such contracts 143 

Form of joint contract 143 

Call special town meeting when 144 

Give notice to form joint contract 145 

Form of notice 145 

Make contract for repairs 146 

Give notice— when exceed $75 146 

Form of notice and contract 146 

Contract for roads, etc., on town lines- 
act as one body 147 

Form of contract 147 

When to advertise for bids on contract 147 

May reject bids 148 

Accept work before payment on contract, 148 
Put up notice against fast driving on 

bridge 148 

Form of petitions for alt ring, widening, 

etc., road 151 

Requisites of petition 151 

Fix time of meeting to hear 152 

Form, notice for time and place to hear ... 154 
May adjourn meeting— give public notice 154 
Form of notice of adjournment of road 

meeting 155 

Indorse memorandum of decision on pe- 
tition 155 

File refusal to grant petition with town 

clerk 155 

Vacation of road— order with petition 

filed with town clerk 156 

Form of order of commissioners vacating 

rpad 156 

Cause survey of road 157 

Form of surveyor's report 157 

When make change in road 157 

Cause re-survey of road 158 

Form of order for re-survey 158 

Ascertain damages before opening road... 159 
Make certificate and present to justice to 
summons jury 161 



Pagh* 
Commissioners of Highways --Co-n- 
tinned 
Form of certificate, application for jury.. 16* 

Hold meeting to finally determine 168, 

Form of notice of meeting 16* 

When may revoke proceedings 168 

Form of order revoking , 16ft 

Cause order, report, etc., to be filed with 

town clerk 16A 

Form of order by laying out road, etc., 

damages assessed 170 

Form of adjournment if so, inserted in 

order 171 

Form of proceedings on road petition 173 

Give notice to remove fence 174 

Form of notice to remove fence 175 

Contracts of inducement may be enforced 

by 174 

Form of contract of inducement 174 

May lay out roads for private and public 

use on petition 177 

Form of petition for 178. 

Proceedings conducted as in other cases.. 177 

Jury to assess damages 177 

Designate time to remove crops from 179 

Meet when county and town line roads 

laid out 180 

Proceedings — majority must concur in 

acts 180 

To allot, to each town, partto open and re- 
pair 181 

Form of order allotting repairs 181 

Divide expenses and damages when they 

can agree 182 

When to refer to land owners 182 

Form ol order establishing, etc., road 

on county or town lines 180 

Where they disagree as to town or coun- 
ty line road— proceedings 182 

Form of order dividing expenses 182 

Form of order referring to arbitrators... 182 

Appeals from decisions of. 183 

When disagreement— appeal 189 

Compensation of. 191 

Refusal or neglect of duty— penalty 192 

Form of statement for compensation 192 

May remove obstruction 195 

Notify owner to remove obstruction...... 196 

Form of notice 197 

Prosecute for fines under road law 198 

Consent tocrossingunder highway— form 199 

Lists filed by overseers, delivered to 203 

Annually ascertain amount of tax to be 

raised, etc 204 

Prepare assessment rolls 204 

Form of order assessing labor and road 

tax 205 

Form of list, assessment of road labor.... 205 
Direct clerk to make copy of list— sub- 
scribe same 206 

Form of alphabetical list 206 

Form of list— land road tax 206 

Give credit for labor on private roads 207 

Refusal or neglect of duty— penalty 208 

Appoint overseers of highways 208 

Form of appointment 20S 

Appoint overseer, case of vacancy 210 

Annually ascertain, etc., for repairs, etc. 218 

Certify same to county board 218 

Form of tax levy for bridge, etc., pur- 
poses 219 

Form of statement, tax levy to give su- 
pervisor 219 

Destroy cockle-burr weeds— penalty 222 

Cause plat of highwav, made arid re- 
corded 222 



INDEX. 



587 



Page 
Commissioners of H»ghways-C'OM- 

tin tied. 

Levy tax for hard roads 22G 

Form of certificate of levy 226 

Powers and duties— hard roads 228 

Advertise for bids— let contracts 229 

May reject bids 230 

Make estimate of work when completed 230 

Compensation 231 

May take material for hard roads- 
agreement 231 

Form of agreement 231 

Constitute drainage commissioners, when 235 
Notify railroad companies to make cross- 
ings 324 

Form, of notice 32-1 

Commissioners. 
To divide county— by whom appointed... 35 

Pay for services 35 

To make written report of proceedings... 36 
To present same to county clerk, when.. 36 

Form of report to county "board 36 

Abstract of, to be sent to auditor by coun- 
ty clerk 37 

To be recorded in a book fur that purpose 

by county clerk 37 

Commissioners of t anada Thistles. 

See Canada Thistles. 
Com mutation. 
Overseer to collect commutation money 209 

Labor may be commuted 211 

When and how commutation money 

paid 211 

Not complete until money paid 212 

Refusal to work or commute— penalty... 212 
Compensation. See Fees. 
Commissions to divide county — how paid 35 

Supervisors of Cook county.*. 97 

Of town officers— a town charge 101 

Of town officers 104-ln5 

Town clerk and supervisor 105 

Assessor— pound master 105 

Board of appointment 106 

None for administering official oath 106 

Commissioners of Canada thistles 109 

Treasurer of commissions of highways.. 129 

Supervisors on appeal cases 186 

Overseer— how allowed 218 

Commissioners of highways 191-231 

Of officers of special drainage district, 

how paid 292 

Members, state board of equalization 395 

Secretary, janitor and page of state 

board of equalization 395 

Presidential electors 468 

Constables at election 475 

.Judges and clerks of election 480 

Board of registry 505 

County officers— when and by whom 

fixed 523 

Complaint. 
Overseer to make, of person in default... 212 

Commissioners may make, when 213 

To recover for injury to drain— torm of .. 272 

In case of paupers 330 

Constables. 
In towns organized under township act 

to hold over 38 

When others to be elected 3s 

Term of office when elected from new 

town created 43 

Form of order for special election ior 90 

Form of notice of special election fur 90 

Council in town, in city, regulate number 107 



Page 
Constables — Continued. 
Serve summons on owner of land when 

damages assessed 164 

Form of return on by, when owner non- 
resident 165 

Serve notice of assessment of damages 

for right of way for drain- 253 

Keep order at elections— powers 474-475 

Special, at elections — compensation 475 

Contest. See Elections. 

Of elections— proceedings 493-494 

Contracts. 

Towns— power to make 52 

When highway commissioners mav 

make '.. 121 

Commissioners not interested in 121 

Orders at meeting of commissioners 121 

With owner— to lay tile drain— form 124 

To destroy willow'hedge— form 124 

For bridges when commissioners of ad- 
joining towns to make 143 

Form of, for building bridges 143 

How enforced 143 

Form of notice by commissioners to join 

in performing 145 

For construction and repair, roads and 

bridges 146 

When exceed $75, notice to be given 146 

Form of contract and notice of letting... 146 
Contracts— roads and bridges on town 

lines 147 

Form of. 147 

Contractor to give bond— form 148 

Payable on acceptance of work 148 

Form of, offering inducements to estab- 
lish road 174 

Commissioners may be sued on 198 

To work out poll tax 209 

For hard roads 229 

To construct drains; how let 267 

Notice of letting 267 

Form of such notice 267 

Drain commis. not to be interested in 267 

For drainage with other counties 303 

Overseers may let support of by 335 

Form of, for support of 335 

Approval of, by towu auditors 335 

Contractor to give bond 335 

Form of bond by 336 

Right of county to make 516 

Right of county to sue on 521 

Contribution. 

Support of poor relatives 411 

Conveyances. 

By town— form of deed for 45 

Effect of, made for benefit of town 63 

By town— recitals prima facie evidence.... 63 

Form of deed of, by town 63 

By town, how made : 63 

Right of way for drainage and release of 

damages 252 

Copies. 
Certified— entries of votes to raise money 98 
Papers fieled with town clerk— evidence... 98 

Records of town clerk— evidence 98 

Certificate of justice's transcript — form of 255 
Of drainage tax list to district treasurer... 263 
Of county records when made for new 

county 512 

Of tax sale list to auditor 429 

Corporations. 

Denned 354 

Listing of capital stock, etc.— rules 365- 

State board of equalization to assess 393- 



INDEX. 



Ca-sts. Page 

When may be recovered against 

town 05 

Of publishing annual statements.. 113 
In appeal from the award of the 

highway commissioners 189 

Against party refusing to work on 

road 213 

Witness fees in farm drainage suit 240 
Taxation in county court ou ap- 
peal from drainage assessment.. 262 
Trimming hedge fence— returned 

as delinquent tax 328 

Refusing to support poor relative 331 
County. 

Pay commissioners who divide 

county 35 

Divisions to conform to govern- 
ment survey 35 

County board— power of to change 

name of town 36 

When part of county not organized 39 
When to bear expense of bridge on 

county line 138 

When to aid in building bridge 139 

Fund raised in, controlled by com- 

sioners , v 139 

Roads on county lines 180 

County, etc., line roads defined... 191 
Special drainage district in two 

counties 276 

County ditches to drain swamp 

land 297 

Contract with other counties — 

drains 303 

When to support poor 332 

Revenue of what kind of money. . 408 
Removal from, how tax collected 411 
Superintendent of schools when 

elected 471 

Commissioners, when eltcted 471 

Officers of, vacancies how filled... 50n 

Boundaries of 521 

Jurisdiction over rivers 521 

Transfer of territory— petition, etc 521 
County board order election as to 

transfer 522 

Notice of election— requisites- 
posting 522 

Form of ballot— effect of vote 522 

Restriction as to size of county. . 522 

Debts— how adjusted 522 

W 7 hen territory released 523 

When election discretionary with 

county board 523 

New county— how formed— petition 

—election 523 

County clerk certify result, etc... 524 

Officers to be elected 524 

Justices to be continued in office. . 524 

Votes— how canvassed 525 

Oath to officers— how administered 525 

Attached to judicial circuit 525 

Terms of court— when held 525 

Transfer of suits — lien of judg- 
ments 525 

Adjustment of property rights and 

debts 525 

Records, etc., copied; when 526 

Duty of commissioner 526 

Copy of records evidence 526 

County seat— how fixed 526 

County board order election to fix 

—when . 527 

Body politic— power to sell, etc... 528 
County board exercise powers of. 529 

Powers enumerated 530 

Powers of county boards 530 



County— Continued Pagb 

Duties of county boards 532 

Raising additional tax— duties as 

to 531 

Bonds— when may be issued 534 

Deeds to be confirmed 535 

Contract— rights and suits 53 » 

Where suits against— brought. .. . 535 
Jurors and witnesses— inhabitants 

competent. . 53(> 

County board prosecute and de- 
rend suits 530 

Judgment against— how paid 530 

Claims against— to be audited 536 

Affidavit to claim— form of 536 

Appeal from decision of board- 
form of bond 536 

Summons on appeal— county clerk 

to issue 537 

Compensation of county officers— 

when fixed 537 

Funds— when kept separate 53 < 

Classification of counties as to 

fees, etc 543 

County Agent. 

How appointed 33x 

Keep account of relief furnished. 338 

Not receive poor of town, when . . 340 

Make complete reports, when, etc. 341 

County Board. See Board of County Comm. 

Commission— governor issue 539 

Oath of members 530 

Duties of 526 

Powers and duties 53) 

Care, etc.. of county property.... 531 

Of funds and business 531 

Examine and sett.e accounts 531 

Neglect to perform duty— penalty. 53S 
On petition to submit question of 

township organization 34 

Appoint commissioners to divide 

county 35 

Power to change name of town. .. 30 
Adopt different name for town... 37 
Designate place of first town elec- 
tion 37 

Appoint three judges of election. . 37 
Order election on refusal to organ- 
ize or neglect to elect officers... 39 
On continued refusal to appoint 

officers 39 

Term of such officers 3 » 

May annex town to adjoining town 39 
Submit question of continuance of 

township organization. . 4:) 

Power to alter town boundaries — 
change lines, divide and enlarge 

towns — create new towns 41 

Give notice of, by posting— by 

publishing, when and how long. 42 
Disputes of towns submitted, on 

division, etc., of property 47 

Power to unite contiguous towns- 
exceptions 47-48 

Cause submission to voters 48 

Canvass votes at such election .... 48 
If majority adopt, to name town 

and define boundaries 48 

Ascertain amount of money to be 
raised in towns in cities, for 

expenses 62 

Supervisor to attend 98 

Have control of, commissioners, 

Canada thistles 112 

Make appropriation to destroy 
Canada thistles 112 



INDEX. 



;s9 



Page 
County Board— Continued. 

Power in drainage cases 297 

Appoint drainage commissioners 297 

When to appoint fence viewers 305 

Power of when poor not supported bv 

the town 837-3S8 

Purchase property to build poor house... 338 

Receive gifts, etc. for support of. 337 

Make rules for poor house— appoint 

keeper— physician 338 

Appoint agent in charge of poor house.. 338 

Make appropriation to support 338 

Sell r>oor farm, etc 338 

Establish county poor house 340 

Fix per diem towns to pay 3-10 

Each town may have poor supported 

there 340 

Town failing to pay; poor not received 341 
Provide for teaching children of poor, etc 3 \\ 

Equalization op assessments, by 3^7 

Meeting for— when held 387 

Assess lands listed and not as-es-ed 388 

Review assessment on complaint 3*8 

Hear claims as to exempt property 38^ 

Proceedings-hearing, etc *..... 388-389 

Appeal from decision— how taken 389 

Equalize values among towns 389 

Powers as to 389 

May consider lands, etc., separately 389 

Set aside whole assessment— when 389 

Order new assessment 389 

Ascertain taxes for county 389 

Annually levy tax for county pur- 
poses 532 

Enter order for additional tax 534 

Submit question of additional tax 

to vote. . 534 

Cause levy— when 534 

May sue for tax on forfeited prop- 
erty 437 

settle with county collector— 

when 430 

Select persons- to replace 449 

Direct county clerk to procure 

book, etc 454 

Elections— appoint judges— when . 472 
Change election precincts— when. . 473 

Provide ballot boxes 474 

Appoint constables for election... 474 

Adjust debts with new county 525 

Provide books to copy records 

for 526 

Erect work house, jail, etc 532 

Erect and mantain lunatic asylum 532 
Authorize vacation of town plat — 

when 532 

Change name of plat, etc 532 

Remove obstructions from water- 
courses 532 

Erect and maintain court house.. . 53L 

Provide court rooms 53k, 

Provide rooms for clerks, treas- 
urer, sheriff, etc 533 

Provide books, stationery, etc 533 

Publish proceedings, etc 533 

Submit question of issue of bonds 

to vote 534 

Prosecute and defend suits 530 

Draw order to pay judgment 536 

Audit claims against county 536 

Affidavit to claim— form of 536 

Decision of— on claims— appeal. .. . 536 
Fix compensation of officers— when 537 

Bonds— proceedings to issue 538 

Meetings— regular— when held 539 

Special— when held 530 



Page 

County Board— Continued. 

Chairman— how elected 540 

Quorum— consist of majority 540 

Successor of county court 540 

Supervise highways, etc 540 

Chairman may administer oaths.. 540 
County Clerk. 

"When elected 470 

Take oath— form of 544 

Give bond— form of 544 

Commissioned by governor 545 

Enter abstract of returns of election for 

township organization 34 

Record same upon records of county 34 

Certify same to auditor of public ac- 
counts 34 

Report of commissioners to divide town, 

presented to 36 

Return to auditor abstract of report for 

dividing county 30 

Record report of said commissioners 37 

Inform auditor of naming of town by 

county board 3T 

Make notices of holding first town elec- 
tion—requisites of. 37 

Give notice of election for division of in- 

corpora'ed town 42 

Duty to post notices of place to hold 

elections, etc 75 

List of town officers elected, filed with 79 

Levy for road damages certified to 134 

Plat of road districts certified to 220 

Designate, on tax books, road tax to prop- 
er districts 221 

Ex officio clerk of special drain district. 279 

Notify of election of commi>sio ers 279 

State auditor certify registration < fdi ain- 

age bonds to 289 

To enter drainage bonds on tax list 289 

Extend tax to meet drainage bonds and 

notes 290 

In case of non-resident paupers to noti- 
fy, etc 333 

Procure books to enter railroad property 373 
Attach warrants and deliver to collector 

to collect tax 373 

Have contents of tracts of land surveyed 377 
Make statement of rate per cent, of tax, 

etc 378- 

Notify owner of exempt property of ap- 
peal from order exempting 3S8 

Transmit abstract of assessment to audi- 
tor, when 390 

Furnish statement of railroad property.. M90 

Transmit returns of assessments, etc 390 

Distribute assessment of railroad track, 

etc 393- 

Distribute assessment of capital stock, 

etc 394 

Extend taxes against such values 394. 

Make lists, for collectors, of taxable prop- 
erty 398 

Make books correspond with townships.. 398 

Extend, on assessor's books, rates, etc 398 

On forfeited property to add back tax. 

etc 399 

Make and record statement of taxes, etc 399 

Forward copy to auditor 399 

Deliver books to collectors, when 402 

Tax rates— how extended 3'js 

Extend rates for cities, etc 399 

Extend all taxes levied, etc 399 

District, village, city tax, etc— how ex- 
tended 399 



590 



INDEX. 



Page 
County Clerk— Continued. 

Deliver railroad tax book to collector 402 

Annex warrants to railroad tax book 402 

Certiiy collectors of towns, etc., to coun- 
ty collector 403 

Mail bond of county collector to auditor 405 
Attach certificate of approval of collec- 
tor's bond 405 

Take charge of collector's books, he dy- 
ing 406 

Appoint examiner of collector's books... 406 
Assist county collector in selling delin- 
quent lands 425 

Attend sale of real estate for tax ... 426 

Enter tract sold on record '.. 426 

Failure to attend— penalty 428 

Certify to record of tax sales, etc 426 

Note payment of tax since judgment 426 

Deliver certificate to purchaser— when... 428 

Make index to sale record 429 

Send copy of sale lists to auditor 429 

Failure herein— penalty 429 

Record of tax sales evidence 431 

Correct erroneous sale 431 

Deliver tax deed to purchaser— when 434 

May include several tracts in deed — 

when 434 

Taxdeedby— ; requisites 434 

Tax deed by— ; form of. 4 4 

Record evidence on which deed issued.. 435 

Keep record of forfeited property 436 

Make entry of redemption 437 

Report to auditor money collected on 

redemption 437 

Certify credit of collector to auditor— 

when 439 

Certify valuation of property, etc 439 

Notify auditor of collector's settlement.. 440 
Make statement of account, etc., to col- 
lector—when 441 

Furnish duplicate to auditor .' 442 

Make statement of tax twice paid 448 

Add uncollected tax to tax of next year.. 452 
Delivering books before collector's bond 

filed— penalty 453 

Keep account with collector 4">5 

Provide lorms for statistics 460 

Revise and correct statistical returns 461 

Transmit returns to auditor 461 

Charge license fee on collector's book, 

etc 462 

Make abstract of votes for elections — 

when 467 

Notify judge of election ot appointment 473 

Provide blanks forelections 474 

Give notice of election 475 

Form of notice of election 475 

Canvass votes of election 484 

Make certificates of election 485-486 

Certify compensation of judges, etc 486 

Send abstracts of vote to secretary of 

state 486 

Neglect ot duty under election law- 
penalty 492 

Fraud in canvassing vote— penalty 492 

Certify result of election to form new 

county 510 

Canvass returns of election to form new 

county 511 

Notify as to election for additional tax... 520 
Make transcript of decision of board, etc 523 
Give notice of election as to animals at 

large 538 

Form of such notice 538 

Clerk of co. commissioners of Cook co... 531 
Act as clerk of county boar*! 535 



Page 
County Clerk— Conltnuzd. 

Have seal— appoint deputies 534 

Responsible for acts of deputies 534 

When office vacant— county board ap- 
point pro tern 534 

Custody of records, etc 534 

Keep record of claims audited, etc 53o 

Keep record of orders issued # 4 "> 

Present order to treasurer to sign 53 > 

Keep index to records 535 

Furnish copy of record— when 535 

County Collector. 

Transfer delinquencies to tax books 223 

Deposit assessment books with county 

clerk 398 

Books for collecting railroad tax deliv- 
ered to 402 

Who to be, in counties 404 

Give bond— form of. 404 

Subscribe oath— form of 405 

Bond approved by county board 405 

Howel-e ap roved 405 

Bond of, filed in auditor's office 405 

Receive no tax books until, eic 405 

Sureties on bond -how discharged 406 

Failure to give additional security 406 

Default of— sureties may attach goods, 

etc 406 

On death, who to take charge of book<... 4 6 

Examination of books on death 406 

When same may be used to collect, etc... 406 

May appoint deputies 4>»7 

Responsible for acts of deputy 407 

Bond of deputy, who available to 407 

Warrant to be attached to list furnished 

to 407 

Duty to levy and collect unpaid tax, etc, 

when 411 

Receive tax on part of land, w.hen 411 

Give receipt when tax paid 412 

Enter name of person paying tax.. 412 

Credits allowed to 414 

Give satisfaction piece to district or town 

collector ,. 415 

Collect special assessments, when 415 

On return of delinquents transfer to tax 

book 415 

Cause demand for— give notice to own- 
er, etc 416 

Make out receipt, when— torm of. 416 

Powers as town collector 416 

When, may collect in place of town or 

district 416 

Powers of, in such cases 417 

Publish notice of application for judg- 
ment 417 

Advertisement— when published 417 

Advertisement to contain taxes due on, 

etc 417 

Give notice of application for judgment 417 
When publisher unable to publish to se- 
lect another 418 

Proceedings to charge real estate for per- 
sonal tax 419 

May publish omitted list, when 419 

Failure of, etc., not allowed as objection 

to collection, etc 420 

Deliver copy of paper, etc., to auditor 420 

Make out delinquent book 421 

Requisites of such book 421 

Report payments of tax after filing of", 

etc 421 

Form of affidavit to delinquent list 421 

Make sale of delinquent lands -25 

Report list of taxes paid since judgment 426 



INDEX. 



591 



Page 
County Collet-tor— Continued. 

Attend sale of land in person or deputy.. 427 

Failure to aitend sale — penalty 428 

Authorized to sell forfeited property, etc 437 
Make statement of unpaid tax to county 

clerk 438 

Entitled to credit on forfeited lands 439 

Make settlement with county board 439 

When to account with county clerk 439 

Credits on final settlement 439 

Final orders and corrections, etc 440 

Partial settlement of, when made 440 

Pay state taxes to treasurer 440 

Effect of failure to obtain judgment 440 

Pav to local authorities amount of tax, 

etc 441 

Failure to pay over— office deemed va- 
cant 441 

Final settlement for state taxes, when 441 

Over payments refunded 442 

Failure to pay over money due state 442 

File auditor's certificate* with county 

clerk 443 

Who not eligible as surety on bonds of.... 445 
When books destroyed, assessment, how 

made 429 

Neglect to obtain judgment— penalty 453 

Keep county funds— manner of. 455 

County Commissioners. 
When tow ship organization ceases- 
election of. 40 

Number— term -how deter.nined 40 

When to assume duties- rights and lia- 
bilities of. 41 

Power to close unfinished business of 

towns 41 

Sell property of town— pay indebted- 
ness, etc 41 

May appoint commissioner of Canada 

thistles 109 

To audit accounts of commissioner 112 

Make appropriations from treasury to 

aid, etc „- 112 

County- Court. 
Appeal from assessment for combined 

drainage; by whom 262 

Form of bond on such appeal 262 

Hearing and judgment on appeal 262 

Taxation of costs on appeal 262 

Jurisdiction as to special drain, district.. 276 

Notice of hearing petition 276 

Service of notice 276 

Hearing; finding, judgment 277 

Appoint commissioners 277-280 

Organize district, when 278 

County Seat. 

In new county, how fixed —election 512 

When another election called to locate... 513 
Credits. 

Rules for listing 363 

Crops. 
Owner have time to remove when pri- 
vate road opened over 179 

On farm, where listed for taxation 358 

Crossing. 
Road may deviate from county line- 
crossing streams 191 

When owner of land on both sides of 

highway mav make 199 

Width of bridge 199 

When made on any water— cost of, how 

fixed 199 

Form of consent of, by com'rs of high- 
ways to construct bridge over 199 



Page 
Crossing— Continued. 
Drainage commissioners to make bridge 

over drains 27? 

Notice to railroad company to make 

bridge .*. 269 

Default of railroad company to con- 
struct 270 

Railroad to erect warning board at 32 > 

What designated on board 323 

Railroad to ring and whistle at 323 

Railroad to maintain 321 

Neglect of to construct, notice to 324 

Form of notice to railroad agent to 

repair 324 

Authorities to construct, when 325 

Company liable for expenses 32;> 

Penalty, how recovered 325 

Railroad not to obstruct crossing except 325 

To place flagman at, when 32") 

Refusal or neglect of railroad— penalty.. 325 

Right to erect house for flagman 326 

Pr- .vision not apply to street horse cars.. 326 

Culvert. See Drains. 

Penalty for injuring, etc 198 

Damages. 
Roads— ascertained before road ordered 

opened, etc 159 

May be agreed upon 159 

Form of agreement on laying out road... 160 

May be released — effect of. 160 

Form of release of, by owner of land 160 

When not agreed or released— proceed- 
ings 160-162 

Form of certificate and application for 

a jury 163 

Form of venire for jury lo assess 155 

Owners to have notice 164 

Land owner* to be notified of assessment 164 
Form of summons to land owners to 

prove damages 164 

Release and agreement filed with 

town clerk 159 

Form of verdict of jury, assessing 167 

Form of order revoking proceedings in 

assessing 169 

Form of order laying out. altering or 

widening road— damages assessed 179 

For taking material for hard roads 231 

Form of agreement as to 231 

Bond to cover damages, pre-requisite of 

suit to establish farm drain 240 

On establishing farm drain ; when pay- 
able 239 

Form of release of damages for right of 

way 252 

Notice to land owners of assessment for 

right of way for drains 253 

Form of such notice 253 

Service there >f. 253 

Form of request for jury to assess for 

right of way of drains 253 

Form of venire for jury to assess for 

right of way of drains 254 

Form of verdict ot jury to assess for 

right of way of drains 254 

Form of justice's entry, jury to assess for 

right of way of drains 255 

Form of certificate to transcript of judg 

ment 255 

Record of proceeding to assess damages 

for right of way for drains 256 

For right of way for drains, over tax, to 

be paid before entry 268 

Shkep,— to.how paid, etc 463 

How ascertained 464 



.92 



INDEX. 



Page 

Debts. See Credits. 
Owing by a town sub-divided or altered, 

apportionment of 47 

On organizing new county— how ad- 
justed 

Tax— what mav be deducted 363 

Not deducted..* 363 

Deduction verified by oath 364 

Definitions. 

What are deemed public roads 115 

Corporation defined 326 

Delinquent as to tax 415 

Words and phrases in revenue law 456 

Of word dog 465 

Delinquent List. 
Not affected by repeal of act— return of.. .201 

Assessment for drainage 265 

Form of such list 265 

Certificate to list 266 

Collection after list returned 266 

Return of, as to personal property 413 

Return of. as to real property 414 

Delinquent Tax. 
Levy of, for roads— how and when made 217 

Who paid over to 218 

Drainage treasurer may receive before 

sale 266 

Collector of, to give bonds 265 

Form of bond of collector of. 266 

Returned by collector 413-414 

Delinquent defined 415 

Collected by county collector 416 

Notice of application for judgment 417 

Application for judgment on 419 

May be paid county collector before sale 421 

Court pronounce judgment for 422 

Sale of lands for 425 

Deputy Collector. 

Collectors may appoint 407 

Responsible to collector 407 

Bond of, available to collector 407 

Warrants attached to list furnished 407 



Ditch. See' Drains. 
When highway commissioners may 

open, etc 121 

When owner does not consent— proceed- 
ings 121 

County, to drain swamp lands 297-303 

Docket Entry. See Entry. 
Form of in case of impounded animals.. 60 
Form of in assessment of road damages 167 

Form of in suit for road labor 214 

Form, in case of drain through lands 

of others 239 

Form; assessment of damages for drain 255 
Form; certificate to transcript 255 

Dogs. 

Listed for taxation 461 

License fee— how collected 462 

To whom fee paid 462 

Who to have custody of fund 462 

Damages to sheep owners paid from 463 

Payment not to bar action by owner of 

sheep 464 

Owner to make affidavit of loss 464 

Form of affidavit 464 

Damages, how ascertained 464 

Fees in proceedings, etc. 465 

Definition 465 



Page 
Drainage. See Drains and Ditches. 

Of roads, by tile or otherwise 118 

Connecting tile drain with others 124 

Hedge destroyed to permit road drain- 
age 124 

Entering other lands to open drain 125 

When consent to enter refused— proceed- • 
ings 125 

Drainage Commissioners. 

Commissioners of highways constitute 

such 235 

Town clerk, their clerk 

Town supervisor, treasurer 236 

County treasurer; treasurer in special 

district 236 

Combined Drainage , 241 

Meeting of commissioners 243 

To ascertain jurisdiction 241 

Hearing on petition; adjournment 214 

View of premises; survey and estimate 244 

Form of finding by 2 

Employment of engineer 245 

Proceedings at adjourned meeting 246 

Record of proceeding at first meeting 246 

Judgment by commissioners 247 

Form of finding on petition 247 

To fix boundaries of drainage district. ... 248 
Proceeding when only twoowners' lands 

embraced 240- 

Form of record on first adjourned meet- 
ing 249 

Form of finding at second adjourned 

meeting 24 - > 

Form of record of proceeding at ad- 
journed meeting : 20 

Determine system of drainage... *2 

Employ engineer, when 251 

Notice to owner of assessment of dam- 
ages 253 

Form of such notice 253 

Form of request for jury to assess 253 

Special assessments for benefits, how 

made 256 

Special assessments for benefits, form of 257 

Classification of land; how made 256 

Notice of meeting to classify lands 257 

Form of such notice 258 

Hearing objections and correction 258 

Appeal io supervisors from 258 

Form of order confirming commission- 
ers' decision 260 

Resolution as to sum to be raised 261 

Form of such resolution 261 

May order assessment payable by instal- 
ments 26:> 

Form of order therefor 263 

To file tax list 263 

Form of order on treasurer 26 r > 

Right to purchase at delinquent tax sale 265 

Contracts to drain, how let 267 

Notice to let contracts 267 

Form of such notice 268 

Not to be interested in contracts 267 

To pay for right of way, over tax, before 

entry 26* 

May expend money to defend, etc., 

suits 26S- 

Have right of entry to survey 268 

Make necessary bridges, etc 270 

Enlarge district 271 

Create sub-districts 271 

Liability on failure to perform duties 273 

Penalty on failure to perform duties 27- 

Annuaireport required 2,: 

Form of report 274 



INDEX. 



503 



Page 
Drainage Commissioners — Continued. 
Form of notice of appointment of com- 
missioner of union district 275 

Special District 275 

Commissioners to survey appointed by 

county court 277 

Corporate powers of commissioners 278 

County clerk ex-officio clerk 279 

Notice of election of commissioners, 

when 279 

Election; how conducted; who vote 279 

Term of office 279 

Annual meeting; when held 279 

Commissioner's oaths 280 

Appointed bv court, when 280 

Qualifications 280 

View lands, make survey, etc 280 

Employ engineer * 280 

Acquire right of way 280 

Assess damages, etc.". 281 

Make special assessment of benefits 282 

Classify lands for assessment 283 

Meeting to classify, notice and appeal 

from 283 

Certify amountto be levied 284 

Make tax list 285 

May order tax paid by instalments 285 

May renew bonds and notes 286 

Extend time to pay assessments 287 

Record bonds issued and payments made 288 
File annual report of bonds and notes... 290 
Compensation; how paid 292 

Drainage District. 

Combined drainage 241 

Petition for system 241 

Form of petition for 242 

Style of district— by number 247 

Boundaries fixed by commissioners 248 

Organization of 250 

Enlargement of 271 

Sub-district; formation and rights of..... 271 

Fnion districts 274 

Constituted when district in more than 

one town 274 

Petition to create, where filed 275 

Proceedings as in combined system 275 

Special district 275 

Special district; how formed 276 

Petition for, to countv court 276 

Style of district '. 276 

Organization of. when 278 

Corporate powers of. 278 

River district; how organized; powers.. 293 

District by user 293 

District by agreement; how organized... 294 
County district to drain swamp land 298 

Drains and Ditches. 

Commissioners of highways, drainage 

commissioners and body politic 235 

Town clerk ; clerk of drainage commis- 
sioners 235 

Duties of clerk of drainage commission- 
ers : 235 

Drainage record to be kept 235 

Supervisor of town 10 act as treasurer of 

district 235 

County treasurer, treasurer of special dis- 
trict 236 

Bond of district treasurer 236 

Farm drainage 236 

Land owners may drain in natural course 236 
Land owners seeking to drain through 
land of others ; proceeding to acquire 

right 237 

Jurisdiction of justice 237 



Page 
Drains and Ditclies— Continued. 

Summons and its service 237 

Hearing; finding; judgment; damages... 238 

Proceeding after judgment 239 

Right of entry, and duty to repair 240 

Rights of drainage run with the land 240 

Penalty, for unnecessary damage done 240 

Pre-requisite of suit; bond for costs and 

damages 240 

Costs; witness fees 240 

Plat of laud to be drained to be filed 240 

Dismissal of suit, when 241 

Record of plat and papers on drainage 

record 241 

Wilful injury to drain; penalty 241 

.Combined drainage 241 

Petition, for system of combined drainage 241 
Form of petition for combined drainage.. 242 

Town clerk to file petition 243 

Town clerk to issue and file notice of 

filing 243 

Form of notice 24:j 

Meeting of drainage commissioners 243 

To ascertain as to jurisdiction 244 

Form of affidavit as to signers of petition 244 

Hearing on petition; adjournment 244 

Form of oath to witnesses 245 

View of premises; survey and estimate... 244 

Form of finding by commissioners ,.. 245 

Employment of engineer 245 

Adjourned meeting; proceedings at 246 

Record of proceedings at first meeting 246 

Judgment by commissioners 247 

Style of district, by numbers 247 

Form of finding of commissioners on 

petition 247 

Boundaries of district to be fixed by com- 
missioners 248 

Proceeding when lands of two only em- 
braced 248 

Form of record on first adjourned meet- 
ing 249 

Form of finding by commissioners at sec- ; 

ond adjourned meeting 249 

Form of record of proceeding at second 

adjourned meeting 250 

District organized ; commissioners deter- 
mine system 250 

Tile drainage to be preferred..... 250 

Engineer employed, wnen 251 

Record of maps and papers in drainage 

record 251 

Form of engineer's report of survey, etc.. 2">1 

Right of way; how acquired 252 

Right of way; effect of release of, and 

filing 252: 

Right of way ; damages to some; equita- 
ble allowance to allowners 252 

Form of agreement for right of way and 

release of damages 252 

Right of way; venire to assess damages... 253 
Right of way ; proceeding by justice of 

peace 253 

Notice to owners of assessment of dama- 
ges 253 

Form of notice of assessment of damages. 253 
Service of notice of assessment of damages 253 
Form of request for jury, assessment of 

damages 253 

Form of venire for jury, assessment of 

damages 254 

Form of verdict of jury, assessment of 

damages 254 

Form of docket entry of justice, assess- 
ment of damages 255 

Form of certificate to transcript 255 



594 



INDEX. 



Page 
Drains and Ditches— Continued. 

Right of way; challenges; trial 254 

Record of proceeding 256 

Special assessments for benefits by classi- 
fication of lands... 256 

Form of assessment for benefits by classi- 
fication of l^nds 257 

Classification of land, how made 2o6 

Utilization of existing ditch 2o7 

Allowance for use of existing ditch 257 

Notice of meeting for classification of 

lands 257 

Service and proof thereof 257 

Form of such notice ,,. 258 

Hearing objections to classification and 

correction , 258 

Appeal to supervisors; bond filed with 

town clerk 258 

Form of order confirming assessment 259 

Form of appeal bond 259 

On appeal, town clerk summons supervis- 
ors 259 

Proceeding on appeal 260 

Form of summons on appeal to supervis- 
ors 260 

Form of summons on appeal to fill va- 
cancy of supervisor 260 

Form of order confirming commissioners' 

decision 260 

Resolution to raise sum required 261 

Form of the resolution 261 

Basis of special assessment 261 

Form of special assessment list 261 

Appeal to county court; by whom 262 

Form of bond on such appeal 262 

Hearing and judgment 262 

Costs, how taxed 262 

Tax, collection not delayed by appeal 263 

Tax, when payable ; lien of; may be pay- 
able by installments 263 

Form of order to pay tax by installments 263 

Tax list to be filed; copy to treasurer 263 

Form of certificate to copy '.. 264 

District treasurer's bond 263 

Form of treasurer's bond 264 

Treasurer to keep account of moneys 264 

Treasurer; receipts and payments by 2(i4 

Form of order on treasurer, 265 

Delinquent list— sale and right to pur- 
chase 865 

Form of delinquent list 265 

Certificate to delinquent list 266 

Collector's bond 266 

Form of collector's bond 266 

Collection alter delinquent list returned.. 266 
Letting contracts to construct drains, etc 267 

Notice of letting contract 267 

Form of letting contract 268 

Commissioners not to be interested in 

contracts 267 

Credit to tax payer for work done 268 

Allowance for right of way to be paid 

before entry 268 

Money received used to defend suits, etc. 268 
Commissioners' right of entry to survey.. 268 
Penalty for preventing entry to survey.. 269 

Highway may be used, when 269 

Assessment again.-t public or lailroad co 269 
Form of notice to railroad co. to build 

bridge 269 

Commissioners to make necessary 

bridges, etc 270 

Default of railroad to construct bridges, 

etc 270 

Repair and maintenance of drains, etc.. 270 
Land owners rightto use common drains 271 



Page 
Drains and Ditches— Continued. 

Enlargement of district 271 

Sub-districts, formation and rights of..... 'ill 

Penalty, for wilful injury to drain 272 

Form of complaint for injuiy to dram... 272 
Owner's liability for damages by animals 272 
Commissioners' liability for failure to 

perform duty 273 

Penalty for failure to perform duty 273 

Annual report of commissioneis and 

treasurer 273 

Form of report of commissioners and 

treasurer 274 

Union districts 274 

Constituted when district in more than 

one town 274 

Petition filed with clerk of town with 

most land 275 

Procet dings as lor combined system 275 

Form of notice of appointment of com- 
missioners 275 

Special District 275 

How formed 276 

Petition to county ci'urt 276 

Bond, conditions of. 276 

Style of district 276 

Notice of hearing on petition 276 

Service of notice 276 

Hearing— finding 277 

Judgment 277 

Commissioners appointed by court 277 

Commissioners' powers to examine, sur- 
vey and report 277 

Organization of district; when 278 

Judgment entered 278 

Corporate powers of commissioners 278 

County clerk ex-ofhcio clerk of commis- 
sioners 279 

Notice to elect commissioners 279 

Election of commissioners, when ; how 

conducted; voters 279 

Commissioner's term ot office 279 

Annual meeting; when held 279 

Commissioner's oath 280 

Commissioners appointed by court, when 280 

Commissioner's qualifications 280 

Commissioners to view lands; make sur- 
vey, etc 280 

Commissioners employ engineer 280 

Maps etc., of system recorded in drain- 
age record 280 

Right of way, how acquired 280 

Right of wav, assessment of damages, 

etc 281 

Form of notice of assessment of damages 28i 
Service of notice of assessment of dam- 
ages 281 

Trial, challenge of jury, verdict 282 

Special assessment of benefits 282 

Classification of lands for assessment...,. 283 

Notice for classification 283 

Meeting for classification ,. 283 

Appeal from classification; how had 

and to whom 284 

Classification confirmed; commissioners 

certify sum to be levied 284 

Commissioners make tax list 285 

Appeal therefrom '^85 

Levy inadequate, additional levy 285 

May be ordered paid in instalments 285 

Record of assessment in drain record 286 

Bonds or notes issued may be renewed... 2^6 

Extension of time to pay assessments 287 

Time to pay may be extended on petition 2*7 
Bonds issued to be recorded; payment 



INDEX. 



595 



Page 
Drains and Ditches— Continued. 

Bonds to be registered by stale auditor... 288 
Auditor certify registration to county 

clerk 289 

County clerk enter on tax list 2&9 

State mere custodian, to collect tax and 

apply fund 289 

Commissioners file annual statement of 

notes and bonds issued 290 

County clerk extend tax to meet 290 

County treasurer, collector and treasurer 

of district 291 

Bond of treasurer 291 

Assessments lien on land; remedies 291 

Compensation of officers; how paid 292 

Construction of bridge over drain 292 

RlVKR DISTRICTS 293 

How organized; powers 293 

District by user 293 

Adjoining owners liable for repairs, etc.. 293 

District by agreement 294 

Organized, how 294 

Repealing clauses; saving clau-e 294 

County ditches to dkain swamp l^nds 

296-303 

Public ditches 297 

Power of county board 297 

Appointment of commissioners 297 

Form, notice of appointment 297 

Form, acceptance of appointment 297 

Form, oath of commissioners 297 

Commissioners to form districts 298 

Classification for taxation 298 

Notice of classification 298 

Keview of classification 298 

Form, notice of classification 298 

Meeting to hear objections 299 

Finding of commissioners 299 

Appeals from commissioners 299 

Form, statement finding of commmis- 

sioners 299 

JManner of appeal and to whom 300 

Form of appeal bond 300 

Power of board of appeal 301 

Form, application and statement for ap- 
peal 301 

Form, summons to supervisors on ap- 
peal 301 

Form, notice to appellant to hear ap- 
peal 301 

Commissioners cause map to be made... 302 

Proceedings to be recorded 302 

County board, appoint drainage corn- 
commissioners 302 

Corporate authority of district 302 

Rate of tax 302 

Tax-how computed— separate fund 303 

Contract with other counties 303 

Purpose of act 303 

Drainage Record. 

To be kept by clerk of district 235 

Plats and papers of farm drains recorded 

in 241 

So. of maps, etc., of combined drains 251 

So, of proceedings to assess damages, 

etc., for risht of way 256 

So, of surveys in special district 2s0 

So, of assessments in special district 2*6 

So. of bonds issued by special district 288 

p river. 

0. carriage turn to right of road 119 

Drunken— penalty for keeping 200 

Driving team when intoxicated— pen- 
alty 200 

Penally lor violation of law 200 



Page 
Election. 

At general, counties may adopt township 

organizaiion 33 

Returns of made to aud<t<>r 34 

Recorded on records of county 3t 

First town election, when tield 37 

Judges of, how and by whom appointed 37 
Notices of time and place and names of 

judges 37 

Notices, by whom and when posted 37 

First town election, how conducted 3£ 

When other justices and constables may 

be elected at 38 

Second, when town refuses to organize.. 39 
Discontinuance of township organization 40 

Canvass of votes and returns 40 

For three countv commissioners, when 

held 40 

Fordivisionof incorporated town, when 

andhow held 42 

When town divided in two or more 

towns 43 

Held in each, lime and place by whom 

fixed 43 

To unite contiguous towns, notice of,how 

given 48 

Votes at, how canvassed 48 

For town officers, when held 66 

Notice of, by whom and how given 66 

Form of notice of 66 

Each town to constitute an election pre- 
cinct 67 

Place of holding, fixed by electors 68 

Supervisor, assessor and collector judges 

of 68 

For town officers at annual town meet- 
ing 71 

School trustees, when elected 72 

Elections held for such heretofore legal- 
ized 72 

Of commissioners of highways at town 

meeting 73 

Places of holding of, when voters exceed 

three thousand 74 

Places of holding when towns lie within 
incorporated city— judges of— appoint- 
ment 75 

General election law to apply in town- 
ship elections 76 

Result of entered in minutes— read at 

meeting 77 

Reading of notice of result to persons 

whose names are on the poll list 77 

Form of notice to person elected 79 

When miscellaneous business concluded, 

election to proceed 84 

Form of order for special election of 

justice or constable 90 

Commissioners of special drain district 

—when 279 

How conducted and who vote 279 

Vote on question of continuance of sup- 
port of poor 339 

For officers of township insurance com- 
pany, when held 344 

For members of State board ot equali- 
zation 391 

Term of office— vacancies, how filled 391 

Election, how governed 391 

For presidential electors, when held 467 

Canvass— returns— tie, how decided 4<i7 

Result published, etc 4<>s 

Governor to give certificate of. 4(i8 

Vacancy, how filled 468 

For tepresentatives in congress, when 
held 469 



596 



INDEX. 



Page 
Elections— Continued. 
Governor, lieutenant governor, secretary 

of state, auditor and attorney general.. 469 

Superintendent of public instruction 469 

State treasurer 469 

Judges of supreme court 469 

Clerk of supreme couit 469 

Judges of circuit court 470 

Judges of superior court 470 

Cleik of superior court 470 

Clerk of criminal court 470 

County treasurers 471 

County surveyor 471 

County superintendent of schools 471 

State's attorney 471 

State board of "equalization 471 

Recorder of deeds 471 

County commi*sioners 471 

Election precincts in counties not under 

township organization 472 

May be changed, when 472 

General and special held in precinct 472 

Each town constitute precinct 472 

County board may divide town 472 

All elections held at place designated 472 

Judges and clerks of— how appointed 472 

Supervisor, assessor and collector judges 

Of 473 

Term of office 473 

Vacancies— how filled 473 

Clerks of, how appointed 473 

Oath of clerks and judges— form 473 

By whom administered 474 

Ballot boxes and poll books for 474 

When constables appointed to attend 474 

Special constables at— compensation 475 

Power to keep order at, etc 475 

Notice, manner of giving 475 

Who to post same 476 

Manner of conducting 476-481 

Polls when opened 476 

Proclamation opening polls 477 

Ballot boxes exhibited, etc 477 

Poll lists, how kept 477 

Voting to be by ballot 477 

Form of ballot— form of cumulative 478 

Manner of receiving and depositing 478 

No adjournment or recess taken at 479 

Canvass of votes— proceedings 479 

Ballots to be strung and returned 479 

Examination of ballots on contest * 480 

Return— form of, by judges of. 480 

Return delivered to county clerk 480 

Compensation of judges and clerks 480 

Challengers at, allowed 481 

Qualification of voters 481-483 

Canvass of votes— certificate of elect'n..484-487 

Tie votes— notice of. 4h6 

Offenses and penalties 487,492 

Liquor not sold on election day 488 

False swearing— illegal voting 488 

Receiving bribe— disorderly conduct 489 

Betting on— offenses of judges, etc 490 

Penalty, judge or clerk disclosing vote... 491 

Neglect of clerk to do duty 491 

Failure to deliver poll books 491 

Neglect of county clerk of duties in 492 

Fraud in canvassing 492 

Defacing poll books, etc 492 

Contesting elections 493, 497 

When legislature to hear, etc 493 

Senate and house to hear, of members... 493 

Circuit Court of county judge, etc 493 

Supreme court to hear of, etc 493 

County court, of county, township and 

precinct officers 493 



Page 
Elections — Continued. 

Of state officers— petition, etc 493 

Testimony— notice— cowers of commit- 
tee , 494 

Report— hearing— decision 494 

Who may contest of senator and repre- 
sentative 494 

Notice of contest— service of— requisites 

Of 494 

Testimony, how taken 49" 

Power of officer taking testimony 495 

Depositions, etc., to be sent to secretary 

of state 495 

Rights of houses of legislature 496 

Contest of other officers 496 

Contestants file statement 496 

Summons to issue— evidence, how taken 496 

Trial as in chancery 496 

Any subject may be contested 496. 

Written statement to be filed 497 

When elector may defend for county 497 

Judgmentin cases of contest 497 

When persons have tie on, hearing con- 
test 497 

When election adjudged void 497 

Appeal from judgment 497 

Election, resignation and vacancies 498 

Of elective officers 498 

When office becomes vacant 498 

Who may determine when vacancy 498 

Governor and lieut. governor vacant 499 

Other state officers 499 

Senator and representative 49C* 

Representative in congress 499 

Judges 490 

Clerks of courts... 500 

County and precinct officers 500 

To what elections act applies 500 

Registration of electors 501 

Meeting— register 501 

Making register — first meeting 501 

New election districts 502 

Revision of register 503 

Corrections 503 

Revising register 503 

Addition of new names 503 

Copies of register.'. 504 

Filing— delivery to judges 504 

Voting— swearing in vote 504 

Entry on register 505 

Non-registered voter— penalty 505 

Poll list and register filed 50"> 

Register open to inspection 505 

Compensation, board of registry 50"> 

Preserving order 506 

Fraudulent registration 506 

False swearing 506 

Blanks to be furnished 506 



Electors. 

Powers of, at town meetings 53-63 

Change of town meeting — proceedings 6S 

Powers at special town meetings 70 

At town meeting — choose moderator 73 

In absence of town clerk, choose person to 

act 74 

Choose assistant moderator at town meet- 
ing 74 

For president and vice, how a^d when 

elected 447 

Meeting of— compensation 44^ 



INDEX. 



Page 

Electors— Continued. 

Vacancy in, how tilled 448 

Registration of. 481-486 

Estrays. 

"When may be taken up 465 

Who may take up and where 465 

Not to be used, except milch animals 465 

When several taken up by same person.... 465 

Notice by taker up, how and when 465 

Requisites of notice 465 

Appraisal to be before justice 465 

Copy of notice delivered to town clerk .... 466 

Record of in town estray book 466 

Form of notice of taking up by house- 
holder 466 

Form of town clerk's entry in estray book 466 



Execution. 

On j udgment for poll tax unpaid — indorse- 
ment. 182 

No property exempt from levy — poll tax 

unpaid 132 

Judgment paid to treasurer of commis- 
sioners 133 

On judgment for failure to work on high- 
way... 213 

No property exempt from judgment for 

road labor 213 

Finding to be indorsed on 213 

Fine collected paid to overseer, etc 214 

Exemption. 

Of paupers from poll tax 130 

None — from judgment for poll tax 132 

From road labor 203 

None for commutation of road labor 233 

Excuse for labor— effect of acceptance 233 

Of what property from taxation 351, 353 

Express Companies. 

Personal property of, where listed 360 

Farm. 

Personal property on, where listed for 
taxation 358 

Fees. See Compensation. 

Commissioners to divide county into 

towns 35 

Of town officers 104-105 

Pound master 105 

Assessor and deputy 105, 386 

Board of appointment 106 

None allowed for administering official 

oath 106 

Publication annual statements 113 

Fence viewers 317 

Auditor in organization of insurance co... 348 

Collector on distraint of property 410 

When State sues, to pay, etc 446 

License for tax on dogs, how collected 462 



Fences. 

Electors power to regulate 56 

When road established, commissioners 

give notice to remove 174 

Failure of owner to remove, commissoner 

may cause removal 174 

Form of notice for removal 174 

Expense of removal— how paid and col- 
lected 175 

Private road opened, owner to remove 179 

Reasonable time to remove 179 

A—e^sor and commissioners of highways 
viewers of 305 



Page 
Fences— Continued. 
In counties not under township organiza- 
tion, viewers how appointed 305 

Term of office 305 

What considered lawful 305 

Electors may determine what is lawful.... 305 

Division fence— removal of— notice 306 

Form of agreement to divide and main- 
tain division . 306 

When owner to contribute to value 307 

Value determined by viewers 308 

Form of notice to adjoining owner to 

choose viewer 308 

Neglect to rebuild or repair, viewers to 

examine 309 

Form of viewers' determination as to 

value of division 309 

Form of notice to owner who neglects to 

repair 309 

Disputes of owners settled by viewers 310 

Form of notice for examination of fence 310 

Form of direction by viewers to build 310 

Viewers— how chosen 311 

Form of notice to choose 312 

Form of submission of dispute 312 

Duties of viewers 312 

Decision of two, final 313 

Form of decision by viewers in relation 

to 313 

Reduce to writing, file with town clerk, 

etc 313 

Form of decision where another selected 313 
Neglect to repair or build after notice- 
damages 314 

Form of notice to contribute to erection 

or repair 314 

Form of appraisal of damages, neglect to 

repair, etc 3!4 

When fences destroyed, etc., notice to re- 
pair 315 

Form of notice to make or repair 315 

Neglect or refn sal to repair..." 315 

Removal of— one year's notice 316 

When owner may not remove 316 

Form of notice of intention to remove.... 316 

Removal without notice— liabilty 316 

Mistake in locating— remedy 316 

When not to be removed 317 

Fees of viewers of. 317 

Damages for breaking into 317 

Animals breaking into enclosure 318 

Owner may keep until, etc 318 

Rescuing animals breaking into— penalty 318 

Railroad to make, on sides of track 319 

Tearing down of— penalty 322 

When company neglects to build— notice 

—form 322 

Adjoining owner may build, when 323 

Hedge fences— owner to trim 327 

Not exceed five feet height 327 

Not to apply to hedge protecting orchard 

or building 327 

May build for windbreak 327 

Application to build for windbreak- 
form 327 

Form of consent to grow for windbreak 327 

Failure to comply with act— penalty 328 

Owner non-resident— commissioners to 

trim 328 

Cost of trimming returned as delinquent 

tax 328 

Fence "Viewers. 
In township, assessor and commissioners 

are 305 

In counties not under township organi- 
zation county board to choose 305 



598 



INDEX. 



Page 
Fence Viewers— Continued. 

V>ilue of fences ascertained by 308 

Give notice to repair or build fence 309 

Form of determination as to value of 

fence 309 

Form of notice to owner who neglects to 

repair, etc 309 

Disputes settled by 310 

Form of notice for examination offence 310 
Form of direction by, to build or repair.. 310 

How chosen— notice, etc 312 

In case of disagreement— chouse a third 31:2 

Decision of, to be in writing 313 

Form of decision by 313 

Form of appraisal of damages by, etc 314 

May examine witnesses, etc 317 

Power to issue subpoenas — administer 

oath 317 

Form nf suDpcena for witness 317 

Fees of 317 

Fencing Railroads. 
Must maintain fence on both sides of 

road 319 

Railroad to make in cities, etc 319 

Railroad maintain cattle guards 319 

Railroad, when liable for damages 320 

Keep right of way free from weeds— pen- 
alty 321 

Allowing animals on right of way— pen- 
alty 322 

Neglect or refusal to build fence, etc 322 

Form of notice to build or repair fence, 

etc 322 

Service of, how made.. 3.'2 

Adjoining owner may build and recover 323 
Damages may be recovered of railroad, 

when 323 

Fines. See Penalties. 
refusal to work on road — to whom paid 

how applied 214 

Neglecting to appear and work on road.. 214 

Set-off against tax 214 

Fiscal Year. 

Officers publish statement at close of 113 

When closes— for certain officers 113 

Forms. 
Accounts against towns. 

Bill, with affidavit 100 

Auditor's certificate allowing claims 101 

Clerk's certificate of aggregate sum of 

claims 102 

Clerk's certificate to claims allowed 103 

Adoption op township organization. 

Petition for organization 34 

Commissioner's report dividing county 

into towns 36 

Notice for first town election 37 

Commissioners of highways; term of 

office determined by lot 39 

Petition for alteration of boundaries 42 

Petition to divide town 42 

Notice, creating new or changing boun- 
daries of town 42 

Agreement on division of town appor- 
tioning real estate 44 

Conveyance on division of town appor- 
tioning real estate 45 

Proceedings on division of town appor- 
tioning property 46 

Notice to meet on division of town to 

apportion property 47 

Submission on division of town to appor- 
tion property on disagreement between 

towns.., 48 

Petition to unite two towns 49 



Forms- Continued. 



Page 



By-laws as'to cattle running at large 59 

Justice's notice of animal impounded... 6tf 
Justice's notice of animal impounded ; 

owner not known 60 

Justice's docket eutry on hearing com- 
plaint 60> 

Pound-masters notice of sale 61 

Canada thistles. 

Appeal from commissioners 1K> 

Commissioner's report 112: 

Decision of commissioners of highways 

on appeal 112 

Decision of commissioners of Canada 

thistles 112 

Conveyance. 

Of land by town 6$ 

Counties. 

Affidavit to claim against county 522 

Bond on appeal from county board to cir- 
cuit court 523 

County commissioner's oath 525 

Report of committee 527 

County Clerks. 

Oath 533 

Bond 533 

Dogs. 

Bond of supervisor.'. 462 

Affidavit of owner of sheep as to injury.. 464 
Docket entry of justice in case sbeep 

killed by doj^ 465 

Certificate to transcript of same 465 

Drains and ditches. 

Bond; district drainage treasurer 236- 

Consent of highway commissioners to 

extend drain into drain on highway... 237 
Summons, to extend drain through 

other's land «. 238 

Justice's entry in case of drain over 

other's land 239 

Bond for costs in land suit for farm drain 240 
Petition, for system of combined drain- 
age 242 

Notice of town clerk of filing petition... 24$ 

Affidavit as to signers of petition 244 

Oath to witnessess 245 

Finding of commissioners on petition... 245 
Record of drainage commissioners' fir>t 

meeting 246 

Finding of drainage commissioners on 

petition for combined drainage 247 

Record of drainage commissioners on 

first adjourned meeting 249 

Finding of drainage commissioners at 

second adjourned meeting 249 

Record of adjourned meeting 250 

Engineer's report of survey, etc., for 

combined drainage 251 

Agreement for right of way and release 

of damages 252 

Notice to ^owners; assessment for right 

of way for drains 253 

Request for jury on assessment for right 

of way for drains 253 

Venire for jury on assessment for right 

of way for drains 254 

Verdict of jury on assessment for right 

of way for drains 254 

Docket entry of j. p.; assessment for 

right of way for drains 255 

Certificate to transcript on assessment 

lor right of way for drains 255 



INDEX. 



599 



Page 
Forms— Continued. 

Special assessment for benefits 257 

Notice of meeting to classify lands 258 

Order confirming classification 259 

Bond on appeal from classification 259 

Summons on appeal from classification.. 260 
Summons on appeal, to fill vacancy of su- 
pervisor 260 

Order confirming commissioners' de- 
cision 260 

Resolution as to sum to be raised 261 

special assessment list fur combined 

drain* 261 

Bond on appeal to county court 262 

Order, to pay assessment by instalments 26:5 
Certificate to copy of tax list to treasurer 264 

Drainage district' treasurer's bond 261 

Order on district treasurer for money 265 

Delinquent list 265 

Certificate to list 266 

Collector's bond, collection of drain 

assessment 266 

Notice of letting dram contracts. 268 

Notice to railroad co., to buiid bridge, 

when 269 

Complaint to recover for injurv to 

drain 272 

Drain commissioners' annual report 274 

Treasurer of commissioners annual re- 
port 274 

Notice of appointment of commissioners 

of union district 275 

Elections. 

Oath of judges and clerks of election 473 

Notice of election 475 

Return of votes cast 480 

Voter's affidavit of qualification. 483 

Witness' affidavit of voter's qualification 483 
Estrays. 

Notice of taking up, by householder 108 

Clerk's entry of taking up by house- 
holder 108 

Fences. 

Agreement to divide and maintain divis- 
ion fence 306 

Notice to choose fence viewers as to val- 
ue of division fence 308 

Fence viewers' determination of value... 309 
Notice to owner neglecting to repair or 

rebuild 309 

Fence viewers' notice fur examination... 310 
Fence viewers' direction to repair or re- 
build 310 

Notice to owner to choose viewer to set- 
tle dispute 312 

Submission of dispute between owners 

to viewers 312 

Decision of viewers as to dispute 313 

Decision of viewers when a third called 

in 313 

Notice to an owner to contribute to build 

or repair 314 

Appraisal by viewers on neglect of an 

owner to repair 311 

Notice to repair fence injured 315 

Notice by owner of intent to remove 316 

Subpoena for witness, by fence viewers... 317 
Notice to owner of animals trespassing... 318 
Fencing by Railroads. 

Notice to company to build or repair 322 

Highway commissioners' notice to repair 

crossing 324 

Fences— Hedge. 

Application to grow hedge fence as wind- 
break 327 

Consent of commissioners to grow such 327 



Page 
Forms— Continued. 
Highways and Bridges. 
Order of commissioners to ascertain road 

defectively described, etc 122 

Consent to plow on highway 123 

Contract to lay drain 124 

Contract to destroy willow hedne 124 

Consent of commissioners to plant trees 125 
Consent of owner to enter en land to 

open ditch 125 

Summons to owner lor assessment of 

damages 126 

Summons to jury for assessment of dam- 
ages 126 

Verdict on assessment of damages 127 

Noiice of call tor special meeting of 

commissioners 128 

Return of service for special meeting of 

commissioners 128 

Money order; commissioners on treas- 
urer 129 

Bond of treasurer of commissioners 129 

Notice of filing treasurer's bond 130 

List of men assessed a, poll tax 131 

Order assessing a poll tax 131 

Notice to pay a poll tax 132 

Return ofsefvice of notice to pay poll tax 132 

Docket entry ; judgment for poll tax 132 

Commissioners' determination of rate of 

levy 133 135 

Commissioners' certificate for greater 

levy 134 

Consent of town board to additional levy 134 

Certificate of clerk, of items 135 

Order on treasurer for payment of dam- 
ages assessed 136 

Commissioners' report to town board 137 

Petition for aid in building, etc., bridge. 139 

Estimate of cost of bridge, etc 139 

Affidavit thereto 140 

Petition for special meeting to vote on 

borrowing money 140 

Order to post notices of special meeting. 141 

Bond on borrowing to build bridge 142 

Coupons attached 142 

Contract of commissioners of adjoining 

towns to build bridge 143 

Notice to -commissioners of adjoining 

towns to join in performance 145 

Notice: public letting of contract 116 

Contract for building bridge 146 

Contract for constructing, etc., road 147 

Contractor's bond 148 

Petition to alter road 151 

Petition to widen road 151 

Petition to vacate road 151 

Petition for new road 151 

Notice of time, etc., to examine, etc., pro- 
posed road 154 

Notice of adjournment of road meeting 155 

Memoranda, decision on petition 156 

Order, vacating road 156 

Surveyor's report of survey of road 157 

Surveyor's report of survey of alteration 157 

Petition for re-survey 158 

Order for re-survey 158 

Agreement as to damages on laying out.. 160 

Pvelease of damages on laying out 160 

Venire for jury to assess damages on lav- 
ing out 163,165 

Application for jury to assess damages 

on laying out 163 

Affidavit of non-residence etc., of owner 164 
Return of non-residence etc., of owner.. 165 
Justice's notice to occupant, owner non- 
tesident, etc 165 



600 



INDEX. 



Page 
Forms- Continued. 
Oath of jury on assessment of damages.. 166 
Verdict of jury on assessment of damages 167 
Justice's docket entry on assessment of 

damages 167 

Commissioners' notice for final meeting 168 
Order revoking proceedings on road pe- 
tition 169 

Order laying out etc., road 170 

Order laying out etc , road, meeting ad- 
journed 171 

Record of commissioners proceedings 

on road petition 173 

Contract offering inducements as to road 174 
Clerk's certificate to copy of road record 174 

Notice for removal of ience 175 

Petition for road lor private and public 

use 178 

Order establishing road on county or 

town lines 180 

Order allotting repairs etc., to towns 181 

Order dividing expenses etc., between 

towns 182 

Order referring expenses to land owners 182 
Award of land owners on division of 

expenses 182 

Petition for appeal from commissioners. 183 
Summons to supervisors to hear appeal.. 184 

Notice of appeal, to commissioners 185 

Notice of appeal, lo petitioners 1*5 

Notice of appeal, affidavit of service 185 

Order of supervisors on road appeal; 

commissioners in favor 186 

Order of supervisors on road appeal; 

commissioners' refusal 187 

Bond on appeal from commissioners 189 

Bond oh appeal, assessment of damages 189 
Certificate of commissioners of disagree- 
ment as to road on town lines 190 

Petition for appeal, road on town line.... 191 
Statement of commissioners' compensa- 
tion 192 

Notice by owner of intent to drain land 197 
Notice to owner to remove obstruction... 197 

Bond for costs ; non-resident 198 

Consent for making crossing under high- 
way 199 

Approval of bridge built over highway.. 199 
Petition for town meeting to vote on 

labor system 202 

Notice of special meeting to vote on 

labor system 203 

Order, assessing lubor and road tax 205 

List of assessment labor and road tax 205 

List of personal property of tax payers... 206 

jList of land ; road tax assessment 206 

Notice of assessment of property tax 208 

Appointment of overseer 208 

Overseer's receipt for poll tax worked 

out 209 

Overseer's list of inhabitants liable to 

work 209 

Appointment of overseer on vacancy 210 

Notice to overseer appointed 210 

Notice to person to work poll tax 211 

Summons on refusal to work 213 

Docket entry on refusal to Avork 214 

Affidavit to overseers return to super- 
visors 215 

Overseers' annual account 216 

Commissioners' tax levy for bridges etc... 219 
Commissioners' tax levy for bridges made 

to supervisor 219 

Notice for vote of larger tax for high- 
ways 221 

Overseers order on treasurer 221 



Forms— Continued. 

Consent to construct railway on road 224 

Petition for gravel, rock etc., road 225 

Notice of vote to levy tax for gravel etc., 

road 226 

Certificate of levy by commissioners 226 

Clerk's certificate of amount tax voted... 227 
Bond of treasurer of commissioners of 

highways 227 

Notice for bids to construct gravel road.. 228 
Contractor's bond to construct gravel 

road 229 

Estimate etc., to construct gravel road... 230 
Estimate etc., to construct gravel road, 

certificate 230 

Agreement as to damages for material 

taken 231 

Office and Officer. 

Oath by town officer 85 

Supervisor's certificate of election 85 

Notice of acceptance 86 

Oath of town officer going out of office.. 88 

Warrant appointing to fill vacancy 89 

Order, special election of J. P. or consta- 
ble 90 

Notice, special election of J. P. or consta- 
ble 90 

Notice to one appointed to fill vacancy.. 90 

Resignation of town officer 91 

Resignation of town officer, acceptance of 91 

Supervisor's bond 92 

Supervisor's bond, approval of. 92 

Acknowledgment of official bond 93 

Supervisor's statement of finances 94 

Supervisor's book ; form of account 96 

Supervisor's book ; memo, of examina- 
tion 96 

Filing paper by clerk 97 

Certificate on entry of votes to raise 

money 98 

Certificate as to copies of papers or records 98 
Revenue. 

Affidavit to assessor's return 385 

Bond of town and district collectors 400 

Oath of town and district collectors 401 

Bond of county collector 404 

Oath of county collector 405 

Collector's affidavit to delinquent list 421 

Judgment on delinquent list 423 

Tax deed 435 

Paupers. 

Notice to remove non-resident paupers... 333 

Contract for support of poor person 335 

Approval of the same 335 

Bond of one contracting to support 336 

Town Meeting. 

Notice for raising money to build bridge 55 

Order of commissioners of highways for 

money 55 

Notice for annual 66,67 

Request to change place of holding 68 

Notice to vote on place of holding 68 

Notice to call special 69 

Notice calling special 69 

Poll list kept 76 

Canvass of votes 77 

Notice of drawing lots on tie vote 78 

Memo, of decision on drawing lots on tie 

vote 78 

Notice to town officer elect 79 

Minutes of proceedings 81 

Notice for vote of larger tax for highways 22 L 
Notice for vote to levy tax for gravel, etc., 

road 226 

Petition for meeting to vote on labor sys- 
tem 20? 



INDEX. 



601 



Page 
r'orms — Continued. 

Petition to submit question to 202 

Notice of special, to vote on labor system 203 

Notice of submitting question to 203 

Township Insurance Companies. 

Declaration of intention to form co 344 

• barter for company 344 

Fractional Townships. 

Attached to adjoining towns 33 

Free-holders. 

Petition to borrow money, signed by 140 

Funds. 

Supervisor keep and pay out town 93 

Supervisor keep account of 95 

Public officers to publish statement of..... 113 
Highway treasurer to have charge of 

road...! 129 

Permanent road fund 227 

Supervisor of town, treasurer of drain- 
age district 234 

County treasurer, treasurer of special 

drainage district 236 

Treasurer to keep account of drainage 

moneys 264 

Receipt and payment bv drainage treas- 
urer 264 

Form of order to draw from drainage 

treasurer 265 

Drainage fund; use to defend, etc., suits 268 
Drainage treasurer's annual report and 

form of 273,274 

County drainage fund kept separate 301 

Of county, how kept 455 

Of county, by whom controlled 517 

County collector make monthly report of 45;> 
Keen account as collector separate 455 

Oas Company. 

Personal property of, where listed 359 

Governor. 

When elected 469 

Lieutenant-governor, when elected 469 

Vacancies in office— how filled 499 

Gravel Road. See Roads and Bridges. 

Guide Boards. 

Erected by highway commissioners 128 

Destroying or defacing— penalty 193 

Hard Roads. See Roads and Bridges. 

Hedge. See Fences. 

Willow— destroyed when 124 

To be kept trimmed 327 

Owner may construct for windbreak 327 

Application to set nut 327 

Consent to grow— form 327 

Highways. See Roads and Bridges. 

Public denned 115 

Plowing on prohibited.....' 123 

Obstructing 193 

Drains upon— when allowed : 194 

Plats of recorded 223 

Railroad tracks upon 224 

Steam engines on highways; duty of 

person in charge 233 

When unlawful to blow whistle 233 

Penalty, for violation of statute 233 

Idling. See Roads. 

Inducements. 

Authorized — establishing, <Mc , road 174 

Form of contract offering 174 



Page 
Inhabitants. 

Of town, when competent as witnesses... 6£ 
Competent as jurors— exception, when... 6;> 

Assessed for road labor 208 

Instrument. 
Form of, by supervisors ordering town 
clerk to post notices of special town 
meeting 431 

Insurance. See Township Insurance Com- 
panies. 
Interest. 

On redemption of animals impounded.. 57 

On bonds for bdrrowed money 142-145 

Recoverable— suit to compel town u, con- 
tribute 145 

Illinois Central Railroad. 

Pay into treasury part income 458 

Furnish copy, to auditor 459 

Governor power to examine b inks of, etc 459 

Lands of, taxable when conveyed 459 

Revenue from, how applied 459 

Judges 

Of supreme court, when elected 469 

Of circuit and superior courts, when 470 

County, when elected 470 

Of courts, vacancies in office, how filled 499 
Judges of Election. 
When and by whom appointed, first town 

election 37 

Names of, inserted in election notice 37 

Appointment of when new town created 43 
Supervisor, assessor and collector of town 

ex officio 68 

Moderator of town meeting like powers 

as 73 

Subject to same penalties.... 73 

In incorporated city to choose clerks of 

election 75 

Take oath prescribed by general election 

law 75 

Poll list kept by, at election held in town 

in incorporated city 75 

Canvass votes polled in manner provided 75 

Make written statement of, etc 75 

Transmit to town clers: certificate poll 

list and ballots 75 

How and when appointed 472 

Term of office— vacancv, how filled 472 

Choose clerk of election 473 

Take oath— form of 473 

Compensation of. 480 

Offenses by— penalty 491 

Judgment. 

Against town for costs 65 

Against town, a town charge 66 

Against commissioner on contracts — 

town charge 198 

For refusal to work road tax 213 

Form of docket entry on 214 

For commutation of road labor 214 

In proceeding to establish farm drain 238 

Of commissioners on petition for com- 
bined drains 247 

Form of the same 247 

Judgment in county court on appeal 

from assessment for combined drains... 262 
On hearing petition for special drain 

district 277 

Entry of judgment for speciai drain dis- 
trict 278 

Against party for support of relative 330 

Notice by collector of application for 

judgment for taxes 417 

How long published and where 417 



602 



INDEX. 



Page 
Judgments- Continued. 

Requisite of. 417 

Figures may be used in 419 

Applications for, when made 419 

Proceedings for sale of property for taxes 

422-425 

Against property considered several 4;2 

Form of order of. 423 

Order to be signed by judge 423 

Appeals, how taken 424 

When not allowed, unless 424 

Proceedings in appeal from 425 

Effect of failure of county collector to 
obtain 440 

Jurors. 

Electors and inhabitants of town compe- 
tent—exception 65 

Inhabitant of county competent 522 

To assess damages— opening ditch for 

road 126 

Form of venire— verdict 126 

To assess damages, how selected 165 

Form of venire lor , 165 

May be challenged as in other cases 165 

To take oath on assessment of damages.. 166 
Form of oath in assessment of damages.. 166 

Trial— verdict— judgment in 166 

May view ground 167 

Form of verdict in assessment ot damages 167 

When several owners— proceedings 167 

Assess road damages, on appeal to super- 
visors ,, 181 

Request for jury to assess damages for 

right of way for drain— form of 253 

Venire for jury to assess damages for 

right of way for drain— form 254 

Verdict of jury to assess damages for 

right of way for drain— form 254 

Challenge of jurors to assess damages for 

right of way for drain 282 

How summoned— vacancies, how filled.. 253 

Justices ot the Peace. 

In towns under township act continue 

to hold over 38 

Others in addition to be elected 88 

Term of office when elected in new town 43 

Town may prosecute action before 65 

Elected at annual town meeting 71 

Action before for disorderly conduct — 

town— at town meeting 83 

Form of order for special election for 90 

Form of notice for special election for... 90 
When may accept resignation of town 

officer. 91 

To give notice of resignation to town 

clerk 91 

Members of board of town auditors 99 

Not entitled to fee administering oath to 

town officer 106 

City council in town in cities may regu- 
late number 107 

Number elected not to exceed number 

allowed by law 107 

Estrays to be appraised before, when 

taken up 108 

Issue summons— venire— proceedings to 

open ditch 126 

When to summons jury to assess dam- 
ages 165 

Form of venire issued by, for 165 

Summons owners of land to appear and 

prove damages 163 

Form of summons to prove damages 163 

Form of docket entry by justice in assess- 
ment of damages 167 



Page 
Justice of the Peace— Continued. 

Summons supervisors to hear appeal 183 

Duty of, to issue venire '181 

Serve notice in writing on land owner... 184 

Form of notice to land owner 163 

Elect supervisors— disagreement between 

commissioners 190 

Jurisdiction in cases under road law 193 

Jurisdiction to recover penalties 198 

Jurisdiction in cases arising under act 

concerning roads 198 

Jurisdiction when commissioners of 

high ways refuse to perform duties 192, 208 
Issue -ummons on refusal of person to 

work on road 213 

Form of summons for refusing to work.. 213 
Hear and determine case— issue execu- 
tion, etc 213 

Issue summons on complaint of overseer 213 

Jurisdiction as to farm drainage 237 

Proceeding as to farm drainage; sum- 
mons and service 237 

Hearing; finding; judgment; damages.. 238 
Form of entry in case of constructing 

drain over land of others 239 

Proceedings after judgment 239 

Pre-requisite of the suit ; bond for costs 

and damages 240 

Taxation of witness fees 240 

To file plat of land to be drained 240 

Dismiss drainage suit ; when 241 

To record papers and plat in suit in 

drainage record 241 

Proceeding Ky J. P. to asses-s damages for 

right of way for drains 253 

Form of docket entry to assess damages 

for right of way for drains 255 

Form of certificate to transcript of entry 255 
Proceedings had before in loss of sheep 

461-465 

Fees for duties in proceedings 465- 

Jurisdiction of animals running at large 537 

Labor System. See Roads. 

Who liable 203 

Exemptions from 203 

Performed in what road district 203 

Amount of labor 203 

Credit for work on private road 207 

Poll tax worked out 209 

Notice to work on highway 210 

Commutation of, in money 211 

Teams may be required 212 

Performed by substitute 212 

Penalty for idling 212 

Refusal to work or commute— penalty... 212 
Refusal to furnish team or tools when 

required 212 

Not exempt from, by excuse 214 

Notice to appear— tools, teams, etc 214 

Three-fourths worked out before Sep- 
tember 216 

Laying out Roads. See Eoads. 

Levy. See Tax. 



Lien. 

Execution for road labor 213 

Of special assessment for drains 263 

Of taxes on real property 443 

On personal property 444 

Personalty liable for tax on realty 444 

Realty liable for personal tax *. 444 



INDEX. 



603 



Page 
Idem— Continued. 

When tax on personalty not charged to 

land .* 4-14 

Of agent, for tax paid, etc 414 

Limitation. 

Time to open road for private or public 

use 149 

To open private roads 178 

Not opened in two years deemed vacated 14'J 

Liquor . 

Selling on election day— penalty 467 

List. See Delinquent List. 

Town officers— filed with clerk 79 

Persons liable to pay poll tax 130 

Town clerk to deliver— highway labor... 203 

Road labor— what to contain....*. 205 

Form of— road labor 205 

Names added by overseers 207 

Assessment— returned to supervisor 215 

Manufa cturer . 

Property of, listed for taxation, where 359 

Map. See Plat. 
In proceeding to drain through land of 

another sketch of drain pre-requisite 240 
And to be recorded in drainage record... 241 
Map of combined drains to be recorded. 251 
Form of engineer's report of survey, etc 251 
Survey, maps, etc., required of drains in 

special district 280 

And to be recorded in drainage record... 280 
Also, map of district as the land classi- 
fied 2S3 

Map also required of county ditches to 
drain swamp land 302 

Macadam Road. See Roads. 

Meeting. See Town Meeting. 
Supervisors and assessors— division of 

property of towns 44-16 

Town, for miscellaneous business— hour 79 

Clerk— record 80 

Board of town auditors— semi-annual 99 

Commissioners of highways — regular 

and special 127 

Commissioners of highways to fix rate 

of road tax 133 

Special to build bridge 341 144 

Commissioners first— laying out road 151 

Adjourned— layinsr out road 154 

Final in, laying out road, etc 168 

Form of notice for final 168 

Supervisors, to hear appeal 184 

To adopt labor system 202 

Of drainage commissioners, the first 243 

Of drainage commissioners, adjourned... 216 

Record of proceeding at the first 246 

Notice ot meeting for classification of 

lands 257 

Service and proof thereof. 257 

Form of such notice 258 

Annual of commissioners of special 

drain district 279 

To classify lands for assessment in spe- 
cial drain district 283 

Of board of equalization, when held 392 

Of board of registry, when 501-503 

Of county board, regular and special 477 

Annual and regular of board of super- 
visors, when 526 

Snecial of, when -how called— notice 527 

Of county commissioners of Cook co 525 



Page 
Memorandum. 

Form of decision of town clerk of the 
votes between candidates 78 

Form, of examination of supervisor's 
books 96 

Form, refusing or graining vacation of 

rOad 156 

Minutes. 

Town clerk to keep, of town meeting 74 

Form of, proceedings of toAVn meeting... 81 

Miscellaneous Business. 

Town— when transacted 79 

Meeting for— how conducted 79 

Hour of meeting 79 

Form of minutes of proceedings 81 

Moderator. 

At town meeting chosen by electors 73 

Duty to preside at meeting 73- 

Duties of, at town meeting 82 

Subject to penalties as other judges of 

election 73 

Has same powers as judges of election... 73 

Shall take oath of office 73 

Form of oath of office 74 

Oath administered by town clerk 74 

When assistant may be chosen 74 

Assistant subject to same penalties as 

moderator 74 

Assistant under direction of the modera- 
tor 74 

Assistant to take oath 74 

Election of town or city, to be chosen at.. 76 
Call town meeting to order for miscella- 
neous business 79 

Sign entry of town clerk of minutes of 

meetings 81 

Ascertain and declare result of vote on 

question 82 

Money. 

Balance in hand of officer going out of 

office 88 

Borrowing— to build bridge 142-144 

What kind receivable for revenue 388 

Motions. 
Questions on, decided by majority of 

electors 82 

Reconsidered, when 83 

Name. 

Towns, how named 36-37 

County board power to change 36 

When two alike, auditor to report 37 

Record of names to be kept by auditor... 37 
Of towns when united to be given by 

county board 48 

Corporate name, style of 49 

Town sue and be sued by name— excep- 
tion 64 

Of drainage districts for combined dis- 
tricts 247 

Union drainage districts 274 

Special drainage districts 276 

River drainage districts 293 

Drainage districts by user 293 

Drainage districts by agreement 294 

Style of corporate name of county 514 

Night Soil. 
Electors power to prevent deposit within 
town 59 

Notice. 

Of first town election— by whom made... 37 

Sheriff to post 37 

Form of notice of first town election 37 



604 



INDEX. 



Page 
TVo t i ce— Continued. 
Of election to discontinue township or- 
ganization 40 

Of election on division of town 42 

Form of, creating new town, or changing 

boundaries 42 

Of election dividing towns 43 

Of meeting of supervisors and assessors 

to apportion property 46 

To whom given, state place of meeting.. 46 

Of election to unite towns 48 

For building and repairing bridge, etc., 

in another town 54 

Form of by justice to owner of im- 
pounded animals 60 

Form of when owner not known 60 

Of bylaws, taking effect 63 

Of annual town meeting 66 

By whom given in absence of town clerk 66 
Request for change of town meeting in- 
cluded in 68 

Form of notice of request to change 

placeof town meeting 68 

Form of notice for special town meeting 69 
For special town meeting, how and by 

whom given 69 

Shall set forth object of meeting 70 

Result of election read at town meeting, 

notice to voters on poll list 77 

Given to parties when tie vote 78 

Of election to office, when and by whom 

given 78 

Form of notice to election to town office 79 

Of appointment to fill vacancy 90 

Form of notice of special election of 

justice or constable 90 - 

Form of notice by town clerk to one ap- 
pointed to vacancy 90 

Notice of resignation of town officer to 

be given by justices to clerk 91 

Of resignation of justice or constable 

given to county clerk 91 

Taking up estray— form 108 

Of special meeting, highway commis- 
sioners 128 

By town clerk— filing treasurer's bond- 
form 130 

To pay poll tax— form 132 

Special election to build bridge 140 

Form of notice to commissioners of ad- 
joining towns to join in contract to 

build bridge 145 

Form of notice of public letting of road 

contract 146 

Form of notice to hear reasons for or 

against roads, etc 154 

Form of notice of adjournment ol meet- 
ing 155 

Form of certificate of commissioners— 
when owners unknown or non-resi- 
dent 163 

Form of justice's notice to land owner to 

prove damages 164 

Given to owners where road damages 

assessed 164 

Notice to owners, how served 164 

Form of notice to land owners of appli- 
cation for jury to assess damages 165 

Final of, determination of high way com- 
missioners 168 

Form of commissioners' notice of final 

meeting 168 

Given to owner to remove fences 174 

Form of, for removal of fences 175 

Form of notice appeal to be given to 
commissioners and petitioners 185 



Page 
Notice— Continued. 
Reasonable, to be given party obstructing 

road, etc 195 

Form of notice for voting larger tax levy 202 

Of election to adopt labor system 202 

Form of. 203 

Town clerk t© give, of road tax assessed.. 207 
Form of notice of assessment of road 

tax 20S 

Give notice to person appointed over- 
seer 210 

Form of notice to person appointed over- 
seer 210 

To person assessed to worK on highways 210 
Form of notice to person appointed over- 
seer 211 

Form of notice to person to work poll 

tax on highways 211 

Persons assessed personal or land tax to 

have notice 214 

Of election— vote for hard roads— form... 22fi 

To levy tax for hard roads— forms 226 

Of letting contract -form 228 

To land owners; assessment for right of 

way for drains 253 

Form of such notice 25:; 

Service thereof 253 

Meeting for classification of lands 257 

Service and proof thereof. 257 

Form of such notice 258 

Of letting drain contracts 267 

Form of such notice 268 

Form of notice to railroad company to 

build bridge 269 

Form of notice, appointment of commis- 
sioner of union drainage district 275 

Of hearing petition for special drainage 

district 276 

Service thereof 276 

To elect commissioners of special drain 

district 279 

Form of notice of assessment of damages 

for right of way 281 

Service of the notice 281 

Form of, to adjoining owner to choose 

fence viewers, etc 308 

Form of, to adjoining owner who neglects 

to repair, etc 309 

Form of, to parties by viewers for exam- 
ination of fence 310 

Form of, to owner to choose viewers to 

settle tiisputes 312 

Form of, to owner to contribute to erec- 
tion, etc 314 

Form .of, to make and repair fence in- 
jured 315 

Form of, of intention to remove fence.... 316 
Form of, to owner animals trespassing... 318 
To railroad of neglect to build fence, etc. 322 
Form of notice to railroad to build or re- 
pair fence 322 

Service of, how made 322 

Form of notice to railroad agent to re- 
pair crossing 324 

Assessment—township insurance com- 
panies 347 

Loss— insurance comnanies 346 

Purchaser at tax sale to give to owner.... 432 

Form of notice of loss of sheep 465 

Manner of giving of elections 475 

Form of, in elections 475 

Of elections by whom posted 476 

In traral fer of territory, etc.— requisites of 468 



INDEX. 



605* 



Page 
Noxious "Weeds. 

Towns to prevent introduction of. 56 

Commissioners to destroy 123 

Cockle-burr to be destroyed 222 

Bfiirsn-y. 

Stock of. listed as merchandise 359 

Oath. 

Moderator of town meeting to take 75 

Form of oath for moderator 74 

Administered by town clerk 74 

Assistant moderator to take oath 74 

Clerk protein 82 

By persons elected to town office 85 

Filed with town clerk 85 

Form of oath by town officer 85 

Form of oath of town officer on going 

out of office S8 

Town clerk administer to town officer... 97 
No charge for administering to town 

officer 107 

Commissioner of Canada thistles take 

same, as town officer 109 

To annual statement 113 

Form of oath of jury for assessment of 

road damages 166 

To statement of commissioners lor ser- 
vices 191 

Complaint of overseer to be on 212 

Form of oath to witness in drainage pro- 
ceeding 245 

Form of drainage commissioners 280 

When assessor may examine person un- 
der 313 

Member state board of equalization to 

take 391 

Town and district collectors to take — 

form of. 400 

To be recorded 401 

County collector to subscribe 405 

Form "of. 405 

Under revenue act assessor, etc., may 
give 453 

Judges anrr-clerKs Of election to tafce 474 

By whom administered 474 

In election, affidavits, how administered 483 

To voter not registered, by whom 504 

To officers new county, by whom given.. 511 
Members county board to take— form of. 525 

Chairman county board administer 526 

Chairman board of supervisors may 528 

County clerk to take— form of. 533 

Obstructing Highways. 

Felling trees upon 193 

Encroaching upon with fence 193 

Plowing or digging ditch thereon 193 

Turning current of water thereon ]93 

Leaving cuttings of hedge upon ]93 

Trees may be felled upon— when 194 

Permission to dig ditch upon 194 

Commissioners to remove after notice... 195 

Form of notice to remove 197 

Depositing garbage upon 197 

Offenses. See Penalties. 

At electron 488-489 

Receiving oribe, etc 489 

Offering bribe 489 

Disorderly conduct 489 

Betting on election 489 

Of judges of election 490 

Judge or clerk disclosing vote 491 

Neglect of duty by clerk 491 

Failure to deliver poll books 491 

Neglect of county clerk in canvassing 
votes— penalty 492 



Page 
Offenses— Continued. 

Kraud by clerk or justice in— penalty 492 

Defacing poll books, etc.— penalty 492 

Official liond. See Bond. 
Office. 

Vacancy when town divided 43 

Qualification and tenure or town office.. 84 

Vacancies in town office, how filled 88 

In board of appointment 8S 

Term of town officers ^7 

Term of commissioner Canada thistles... 10l> 
Commissioner special drainage district... 27i) 
Term, members state board of equaliza- 
tion 391 

Term of Cookco. commissioners 53<> 

County clerk keep office at court house... 534 

Terms" of officers in general 469-472 

Officers. 

Town— refusal to elect 39 

Town— appointed by county board 3i> 

Failure to qualify 39 

When town divided— term 43 

When towns united 48 

Town officers, when and how elected 7L 

Lists of, filed with county clerk 79 

Term of office of town officers 87 

Successors of to demand books, etc 87 

Demand in case of vacancy 87 

Duty of outgoing to deliver over records. 

etc 87-8S 

When required to deliver up on oath 87 

Entering upon office without taking oath 87 

Term of appointed officer 88 

Supervisor and commissioner of high- 
ways to pay over money on going out 

of office 88 

Upon death of, demand of executor, etc 88 

Form of oath of outgoing officer 8S 

Publish annual statements 113 

Treasurer, commissioner of highways- 
appointed 128 

Form of return on service of notice on 

land owner 165 

Special drainage commissioner, compen- 
sation—how paid 292 

Of township insurance co., when elected 345 

State andcounty, when elected 469-171 

Contesting election of— proceedings.. 493-497 
Oath of to new county, by whom admin- 
istered 511 

Order. 

Joint, of commissioners of towns 50 

Form of, joint commissioners of high- 
ways 55 

Form of. for special election of justice or 

constable 90 

Form of— vacating road 156 

Form of order revoking proceedings on 

road petition 169 

For altering, widening or laying out road 170 

To be filed with town clerk 16i> 

When damages released or agreed on 171 

Form of laying out, altering, etc., when 

damages released or agreed on 171 

Laying out private road— rescinded after 

two years 179 

Form of order establishing, altering, etc., 

of road on county or town line 180 

Form of, establishing, etc., road on coun- 
ty or town line 1*0 

Form of, alloting repairs between towns 181 
Form of order of commissioners refer- 
ring expenses, etc., to free holders 182 

Form of order of supervisors fixing time 
and place to hear road appeal 186. 



600 



INDEX. 



Page 
Order— Continued. 

Form of order of supervisor on road ap- 
peal from decision in favor of road 186 

Form of order on road appeal— decision 

refusing road 187 

Of overseers to be approved by commis- 
sioners of highways 221 

Form of order con firming classification 

of lands for drainage assessment 259 

Form of order confirming decision as to 

classification on appeal 260 

Form of order to pay drainage assess- 
ment by installments 263 

Form of order on drainage treasurer for 

money 265 

Overseer of Highways. 

Form of acceptance of office by 86 

When required to notify person to work 

on highways 201 

File list with town clerk 203 

Duty to add names of persons on list, 

when 207 

How appointed— term of office- qualifi- 
cations 208 

Repair and keep in order highways 208 

Warn persons to work on highways 208 

May contract to perform labor on road 

or bridge 209 

Form of receipt for poll tax worked out 

by contract..... 209 

Form of list of inhabitants liable to work 

on highways 209 

Collect fines and commutations 209 

Execute orders of commissioners of high- 
ways 209 

Refusal to serve— successor —how ap- 
pointed 209 

Form of appointment of overseer 210 

Penalty for refusal or neglect to perform 

duties 210 

Notify person to perform road labor 210 

Form of notice to person appointed 210 

Commutation money paid to— how ex- 
pended 211 

Power to require owner of team, cart, 

etc., to work on highways 212 

Credit owner of, two days for each day's 

service with 212 

Persons assessed may hire substitute to 

work on highways 212 

To make complaint for penalties 212 

Failure of, commissioners may act 212 

Give notice to persons assessed, land or 

personal property tax 214 

May require persons to furnish imple- 
ments, etc 214 

To mark paid, give receipts 215 

Deliver to supervisors delinquent list, 

etc, when 215 

Form of affidavit by, upon return of list 

to supervisor 215 

Penalty for neglect 215 

Duty to have three-fourths road labor 

worked before September 216 

Render an account, form of annual 216 

Compensation of 218 

Overseer of the Poor. 

Supervisor ex officio 71, 334 

Town auditors to examine account of. 100 

Make complaint, in case of pauper, etc... 330 

When county board appoint 334 

Duties as to infirm, etc.. poor 334-335 

Letting out support of poor 335 

Take bond to support, to county 335 

Commit poor to care of householder 335 



Page 
Overseer of the Poor— Continued. 

Form of contract for support of pauper.. 335 

Form of approval of contract 335 

Form of bond of coniractor 336 

When temporary relief given 336 

When non-resident sick, etc., aided 336 

Make report to county board— when 337 

Return list of poor, etc 337 

Report to town auditors— when 337 

Keep account of persons relieved, etc 338 

File account with county clerk— when... 338 

Failure to report— penalty 339 

Pai'liameni ary Law. 

Public meeting— organization of 571 

Manner of resenting business 573 

Motions— manner of proceeding 573 

Motions in general 574 

Motions to amend 576 

Order and succession of questions 576 

iveconsideration of question 577 

Committees— report 578 

Partition. 

Of town lands 65 

Paupers. 

Exempt from poll tax 130 

How and by whom supported 329 

When so from intemperance 330 

Who first called on to support 330 

Married females not liable for support... 330 
Failure to support, complaint by state's 

attorney 330 

Over-eer may make complaint 330 

Notice to be given defendant 330 

Trial— judgment 33L 

Court may direct contribution 331 

Partial support— court may direct 331 

Order of court changed from time to 

time 331 

Payments, how enforced 331 

When towns to support 332 

When not resident of county— removal.. 333 
Form of notice to remove non-resident... 333 

Costs, to whom adjudged 331 

Bringing into county— penalty 332 

When county to support poor 332 

Term residence defined 333 

Supervisor overseer ex officio 334 

To execute bond 334 

Overseer in counties not under township 

organization 334 

Duties of overseers 334 

May let out support of 335 

Form of contract for support of 335 

Person to whom let to give bond .-. 335 

Form of approval of bond 335 

Temporary relief, when given, 336 

Form of bond by contractor to support 

poor 336 

Aid, when given to non-resident poor 336 

Overseer make report 337 

When supported by town, report to town 

auditors 337 

Powers of county board over poor 337 

Overseer of to keep accurate account, 

etc 338 

File copy of account with county clerk.. 338 

County agent to keep like account, etc 338 

Keeper of poor house keep account, etc. 338 
Neglect of overseer, etc., to make reports 

—penalty 339 

Poor to be kept at poor house 339 

Township support— how abandoned :-39 

Residence of. 340 

County board may adopt separate sup- 
port 340 



INDEX. 



G07 



Page 
Panpers— Continued. 

May fix rate each town shall pay 340 

Town may have supported in poor house 340 

When town fails to support 340 

County agent to report 341 

Tuition or children of. 341 

Bodies for dissection, when 561 

Penalties. 

Powers of electors at town meeting to 

impose 61 

Not to exceed fcoO 61 

How applied 62 

For disorderly conduct at town meeting 83 
On refusal of persons elected to office to 

serve 87 

For neglect of supervisor to tile state- 
ment of affairs of town 94 

Town clerk neglecting to record and 

postup same 94 

How recorded, against town clerk and 

supervisor 94 

When recovered, how appropriated 94 

Duty of supervisor to prosecute lor 95 

Failure of supervisor to perform duties... 97 
Failure of town clerk to certify taxes to 

county clerk 98 

Neglect to publish annual statement 114 

For fast driving on bridge 148 

Failure of highway commissioners to 

perform duties 192 

Destroying, defacing, etc., guide boards.. 193 

Injuring or obstructing road 193 

Depositing garbage in road 197 

Injuring sidewalk, culvert and cause- 
way 198 

Suits for recovery, by whom brought 198 

Application of fines— to whom paid 199 

Neglect to keep on right of road 199 

For keeping drunken driver 200 

Neglect of overseer to perform duties.... 208 
Failure of substitute to work on highway 212 

Imposed on person assessed 212 

Against porson remaining idle, etc., on 

highways 212 

Failure to appear when assessed and no- 
tified 212 

Complaint for made by overseer 212 

Fines, how applied....." 214 

Neglect of overseer to deliver delinquent 

list, etc 215 

Neglect of overseer to render account 217 

Mow recovered 217 

Violation of statute as to steam engine 

on highway 233 

Unnecessarv damage, constructing farm 

drain 240 

Wilful injury tolarm drain 241 

Preventing entry of drainage commis- 
sioners to survey 269 

Wilful injury to combined drain 272 

Form of complaint to recover 272 

Failure of drainage commissioners to 

perform duty 273 

For rescuing animals in enclosure when 

taken 318 

Neglect of railroad to make cattle guards, 

fences, etc 321 

Tearing down of fences, etc 322 

Killing stock wilfully 324 

Starting railroad train without signal 324 

Neglect to make railroad crossings, etc... 324 

For neglect, how recovered 325 

Neglect to comply with law to construct 

crossing, eic 325 

Neglect or refusal to place flagman 325 



Page 
Penalties— Continncd. 
Violation of law for railroad fences and 

crossings 3:fi 

Failure to trim hedge fence 328 

Bringing paupers into county 332 

Failure overseer of poor to make report., 339 
Neglect to return schedule to j.uditor, 

etc 372 

How recovered 372 

Making false schedule 374 

Failure county collector or clerk t ■ at- 
tend tax sale 428 

Failure county clerk send auditor certi- 
fied sale list 429 

County clerk delivering tax books before 

collector's bond filed , 453 

Neglect collector to obtain judgment, etc 453 
Failure to do duty under the revenue 

law 454 

Selling liquor on election day 488 

Illegal voting 488 

For offenses of judges of election 491 

Disclosing vote 491 

Neg ect of duty of clerk of election 491 

Neglect of duty of county clerk 492 

Defacing poll books, etc.." 492 

Tearing down registry list 502 

False statement as to right to vote, etc 505 



Personal Property. 

Disposition— division of towns 46 

Form of alphabetical list of, for road tax 206 
Not exempt from levy for road or street 

labor 213 

Persons assessed to have notice to work, 

when 214 

Liable to taxation 350 

Rules for valuing for taxation 353 

When listed for taxation 355 

By whom listed 356 

What held to be 357 

When and manner of listing 357 

Farm, how and where listed 358 

In transitu where listed 359 

Nursery stock listed as 359 

Of banks, brokers, jobbers, etc., how 

listed 359 

Of gas and coke companies 359 

Street railroad, gravel and plank roads, 

how listed 360 

Horse and stage companies property 360 

Of express or transportation companies... 360 

Consignee of, list interest in 3ti0 

Interest on bonds 300 

Deed held for money loaned 360 

Where owner of assessed 360 

Place of listing, how fixed 360 

Owner to make schedule 361 

Kefusal or neglect to make, misdemeanor 361 

Form of schedule 361 

Assessor may examine owner under oath 363 

Falsely swearing, guilty of perjury 363 

Rules for listing credits 363 

Rules for listing and valuing of banks, 

brokers, etc 364 

Pawn-brokers, when to list 3f>f> 

Of railroad company to be listed 37') 

Rolling stock of a railroad as 370 

Of telegraph companies, how listeo and 

assessed 374 



G08 



INDEX. 



Page 
Penalties— Continued. 
Rules for equalizing personal property... 392 

Form of return of delinquent tax on 393 

Uncollected tax, how collected 452 

Petition. 

For township organization 34 

To whom presented- requisites 34 

To change name of town 36 

For discontinuance of township organi- 
zation 40 

For alteration of boundaries of towns... 42 

Uniting contiguous towns— requisites 48 

To build bridge with aid of county, by 

whom presented 138 

Form of, to county board for appropria- 
tion to aid in building bridge 139 

Form o f, for special to av n meeting to vote 

to borrow money to build bridge 140 

Form of; for re-survey of road 158 

Altering, widening,vacating or establish- 
ing roads 151 

Form of for altering, widening or vaca- 
ting road 151 

Form of for new road 151 

Form of for private road 178 

Form of for appeal from decision of 

commissioners 183 

Form of for appeal in case of town line. 191 

To adopt labor system— form 202 

For hard roads— form 225 

For system of combined drainage.... 241-242 

To be filed with town clerk 243 

« om mission ers hearing on petition 244 

Form of commissioners of drainage dis- 
trict on petition 247 

For union drainage district where filed.. 275 

For special dramaere district 276 

Notice on hearing of such petition 276 

To grow hedge as windbreak— form 327 

To abandon township support of paupers 339 

For transfer of property to county 507 

For formation of new county 509 

For allowing animals to run at large- 
form 538 

Plat. See Map. 
New road or alteration— filed with clerk 157 

Resurvey of roads— filed with clerk 158 

Of roads, when to be filed in town clerk's 

office 158 

Copy of in town and county line pro- 
ceedings filed and recorded in coun- 
ties, when 180 

Town and county line roads— recorded... 180 
Town clerk to furnish, of road districts.. 220 
Of roads, etc., laid out, etc., to be record- 
ed within six months 223 

Neglect to— penalty 223 

Of real estate when subdivided, to be 
recorded 375 

Polls. 

Closed for miscellaneous business 79 

Opened after miscellaneous business 84 

In election of drainage commissioners... 279 

Time of opening and closing 476 

Proclamation on opening and closing 477 

Poll List. 

Separate kept in incorporated towns and 

villages 75 

Form of, to be kept at town meeting 76 

Kept at election— form of. 477 

Penalty for defacing, etc 492 

Filed with registry list, when 505 



Pag 2 
Poll Tax. 

Commissioners to make list : JO 

Who exempt from Ijji 

Form of list, persons assessed 131 

Form of order assessing 131 

Inhabitants to work on highways.... 203 

Number of days required 203 

Assessed by highway commissioners 20S- 

Form of order assessing highway labor... 205 
Credit given for labor on private roads... 207 

Persons warned to work by overseer 208 

Overseer may contract to work out 209 

Form of receipt for, worked out by 

contract 200 

Form of list of inhabitants liable to 209 

Overseer of highway give notice to work 210 

When overseer may commute 211 

Overseer may require teams of person 

assessed 212. 

Substitute for person assessed 212 

Form of notice to work on highways 211 

Idlers, etc— penalty for 21-_ 

Neglect to appear to work— penaltv 212 

Complaint on neglect to appear 212 

Summons issued by justice— form 213 

Trial— execution 213 

No personal property exempt 213 

Fine when collected paid to overseer 214 

Acceptance of excuse not exempt from 

roadlabor 214 

Population. 

Of towns on election of additional super- 
visors, how assertained 7L 

Pooi- House. 

County board may build 337 

Keeper of, keep account 339 

File copy of account with county clerk.. 339 

Posting. 

Notice— first town election 3" 

Notice— change or dividing town 42 

Notice— uniting towns 48 

Notice of, by-laws 63 

Notice— annual town meeting 66 

Supervisors' statement to be posted 94 

Notice of taking up estray 10S 

Copies annual statement 114 

Notices special town meeting 141 

Notice— letting contract 146 

Advertisement— bids, building bridge 147 

Notice —meetings to hear reasons— laying 

out road 153 

Notice of adjourned meeting— road 155 

Notice of assessment of property tax 207 

Pounds. 

Electors at town meeting power to estab- 
lish 57 

Pound Masters. 

Electors at town meeting determine num- 
ber, duties and election of. 5T 

Notice of sale by— form of 61 

When elected and notified to file accept- 
ance of office 86 

Neglect to accept, refusal to serve 86- 

Form of notice of acceptance of office... 86 
Fees allowed to 105 

Powers. 

Corporate powers of towns enumerated 

51-52 

Sue and be sued 51 

Acquire property 51 

Make contracts 51 

Of electors at town meeting 53-63 

Make orders for sale of property, etc 53. 



INDEX. 



609 



Page 
Powers — Continued. 
Take necessary measures for exercise of 

corporate powers 53 

Direct raiding of money for purposes 

enumerated 53-55 

Officers appointed to fill vacancy 8S 

City council— city organized as town 107 

Of drainage districts, (see drains, etc.) 

235-303 

Of township insurance co 345 

Of county 516 

Of Cook county commissioners 530 

.Precinct. See Elections. 
Each town to constitute, for town meet- 
ings 67 

Election— change of, etc 472 

Private Roads. See Roads. 

Private and public 176-179 

May be laid out on petition 176 

Form of petition for private and public 

use 178 

Da m ages assessed— paid by persons bene- 
fitted 177 

Remainderof damages how paid 177 

Damages paid before road opened 177 

OpenecFwiihin two years from making 

order 178 

Crops and fences, owner of have time to 

remove 179 

Work done on may be paid for by com- 
missioners 207 

Process. 

How served upon town 64 

Served on non-resident— opening ditch... 127 

Property. 

Disposition of -annexation of towns 46 

What taxable 349 

WUat exempt from taxation 351 

Rules for valuing personal 353 

Rules for valuing real 355 

Personal when listed 355 

Who shall list and what listed 356 

Where listed— what held to be personal.. 357 

Manner of listing personal 357 

Railroad tax on, how extended and col- 
lected 358 

Proceedings in equalization of, by state 

board 392 

Forfeited for tax added to current year.. 399 

Sale of distrained 410 

8urplus after sale returned 410 

Form of return of delinquent 414 

Forfeited property, record to kept of by, 

etc 436 

Redemption of purchase of. 436 

Report and payment of money collected 

on forfeited 437 

Back tax added— effect of 437 

County board may institute suit for, 

when 437 

Omitted property, how taxed 451 

Publication. 

Notice creating new town 42 

Notice uniting towns 48 

Annual statements of officers 113 

Qualification. 
Failure of persons appointed to office to 

qualify 39 

Of persons to vote at town election 83 

To hold town office 84 

Person elected to town office subscribe 

oath 85 

Neglect to take oath, a refusal to serve... 85 



Page 
Qualification— Con tinned. 
Neglect of pound master to file accept- 
ance 86 

Failure of collector to give bond 86 

Failure of supervisor to perform duties 

—disqualified 97 

Of drainage commissioners, special dis- 
trict 280 

Of town and district collectors 400 

Of voters— affidavit— form 483 

Oath of witness to affidavit of voter 483 

Convicts disqualified to vote 483 

Quorum. 
What constitutes, of state board of equal- 
ization 395 

Majority of in county board 526 

Board of supervisors, majority of. 528 

Railroads. 
Property of— taxation for road purposes.. 204 

Assessed for drainage; when 269 

Form of notice to railroad co., to build 

bridge 269 

Default of company to build bridge 270 

Fence track 319 

Construct cattle guards, etc 319 

Clear way of dead grass, etc 322 

Neglect to build fence— notice— form of.. 322 

Maintain warning boards at crossings 323 

Blow whistle and ring bell at crossings... 323 

Killing stock— penalty 324 

Starting train without signal— penalty... 324 
Construct and maintain crossings, etc... 324 
Neglect to make crossings— notice to — 

form of. 324 

Penalty for neglect or refusal to make 

crossings 325 

Holden for expenses of crossings 325 

Not to obstruct highway, etc 325 

To place flagman at crossing 325 

Penalty for neglect— how appropriated.. 326 

Penalties general 326 

Not apply to street railroads „ 326 

Personal property of street, where listed 359 
Track, road and bridge— personal prop- 
erty . 360 

Manner of listing and valuing property 

of. 360 

Tax on properly of, how extended and ' 

collected 373 

Track androl.ing stock, by who assessed 393 
Railroad Property. 

Taxation for highway purposes ..„ 204 

Railroad Track. 

What designated as , 370" 

Held to be real estate tor taxation .„ ;s?> 

How listed and valued.... .,., 370 

Where listed and assessed „ 370 

Rates. 
For taxation, county clerk to extend 395, 398 

For state purposes, how ascertained 396 

Taxes for school purposes 39;i 

Auditor to certify to county clerk 396 

County purposes, how ascertained 397 

For towns, cities, districts, villages, etc.. 

how ascertained 397 

For cities, towns, etc., estimated by coun- 
ty clerk 399 

How extended 399 

Real Estate. 

Disposition on division of town 44 

Form of agreement by supervisor and 

assessor 44 

Disposition on annexation of town 44 

Town power to hold T etc., and convey..-. 51 



610 



INDEX. 



Page 
Real Estate- Continued. 

Effect of conveyance to town 64. 

Form of deed of conveyance by town.... 63 

When town may partition 65 

Tax on, for roads ascertained by high- 
way commissioners 204 

Per-ons assessed to have notice to work.. 214 

Liable for tax ition 350 

Rules for valuing 355 

Platted ground of railroad, how de- 
scribed 373 

When li led for taxation and who liable 

for tax 374-375 

Exempt leasehold interest, when to be 

listed 375 

Government —swamp— Illinois Central, 

etc., when taxed 375 

When owner to have land surveyed and 

platted 375 

Plat of surveyed land certified and re- 
corded 375 

Owner neglecting to survey, etc., clerk 

to cause 376 

How listed for taxation as between coun- 
ties 376 

How listed lor taxation as between 

towns 377 

How equalized for taxation 394 

Form of return when delinquent 414 

When delinquent, special assessment 

placed against 416 

lale of for taxes 425-429 

■ale of on execution for state— redemp- 
tion k 447 

Recess. 

At town meeting during time of trans- 
action of business 77 

Record. 

Auditor of state keep of bounds and 

nameof town 37 

Of town when discontinued— deposited 

in countyclerk's office 40 

Town meeting- kept by town clerk 81 

Signed by clerk and moderator 81 

Resignation of officer— recorded 91 

Town clerk to record supervisor's state- 
ment 94 

Of town, clerk to keep and have custody 

of.. 97 

Town clerk to record proceedings of 

town meeting, etc 98 

Town clerk to record proceedings of 

town auditors 102 

Proceedings of board of health— town 

clerk to keep 103 

Town clerk to record estray notices 107 

Roads imperfectly described, etc., en- 
tered in town clerk's office 122 

Commissioners of highway— to keep of 

meetings 127 

Commissiocers of highway— signed by 

president and clerk 128 

Release or agreement— road damages, 

recorded 159 

Town clerk record road papers 160-170 

Form— proceedings on roan petition 173 

Clerk's record of roads, evidence 174 

Form of certificate of clerk to copy of 

road v. 175 

Orders, plats, etc., laying out roads, re- 
corded 180, 223 

Town clerk to keep drainage 235 

Drainage record to be kept 235 

Of plat and papers of farm drainage. al- 
lowed 241 



PAGK 

Record— Continued. 
Form of record first meeting of drainage 

commissioners 24C> 

Form of record first adjourned meeting 

of commissioners 249 

Form of second meeting of commission- 
ers 250 

Of maps, etc., of combined drains 251 

Of proceeding to assess damage for drain 

right of way 256 

Of survey of special drain district 2so 

Of assessment in drain district 286 

Of bonds issued by special drain district 2>8 
County clerk enter land sold for taxes on 426 
sale and redemption record furnished by 

county 427 

Forfeite'd lands entered on sale and re- 
demption 427 

Of forfeited property— by whom kept 436 

Of assessments, etc., destroyed- how re- 
placed 449 

Of new county-commissioners appointed 

to make 512 

Copies of record of new county— evi- 
dence 512 

Record of Roads. See Record. 
Recorder. 

Of deeds, when elected .„ 451 

Redemption. 

Of animals distrained or impounded 57 

Of real property sold for taxes, when to 

be made 429 

By minor heirs 430 

By tenants in common 430 

To whom it enures when made 430 

Suffering land to be sold again 431 

Books and records of county clerk evi- 
dence of sale 431 

Of land erroneously sold 431 

Effect of receiving money for 432 

Of forfeited property 436 

Of property sold for state, how made 447 

Deed fur auditor to obtain 447 

Refusal to Serve. 

Neglect to qualify, deemed a 85 

Pound master— failure to give notice of 

acceptance 85 

Collector— failure to give bond 86 

Supervisor— forfeit $25 87 

Registration of Electors. 

\\ ho constitute "board of registry" 501 

When to meet 501 

When registry to be made 501 

File original list made by board 502 

Manner of making 501-502 

Copy posted— penalty tearing down 502 

Revision of— second meeting 503 

Proceedings open— make corrections 503 

Revise register— add new names 503 

Cause copy of registry made, etc 504 

No vote received at state election unless 

on list 504 

Entry on by clerks of election 505 

When registry lists filed in town or city 

clerk's office 505 

Register open for inspection 505 

Compensation of members of board 506 

Fraudulent registration, punishment 506 

Blanks for, prepared by secretary of state, 

etc 506 

Power to preserve order 5oa 

Vacancies in, how filled 506 

Violation of law— penalty 506 



INDEX. 



Gil 



Page 
Release. 

Damages, owner may release 1'9 

Form of release by owner of land 160 

To be filed with town clerk, when 169 

Of right of way for drains — effect of. 252 

Form of release of damages for such 
right of way 252 

Report. 

Commissioners make, of decision of coun- 
ty into towns 36 

Form of, to divide counties into towns.... 36 

Abstract sent auditor 37 

Commissioners of Canada thistles Ill 

Filed with town clerk Ill 

Read at town meeting Ill 

Copvsent secretary board of agriculture 111 

Form of. Ill 

Commissioners highways to town audi- 
tors 136 

Supervisors— in appeal cases 186 

Over-eer— before annual town meeting... 216 
Annual report of drainage commission- 
ers and treasurer 273 

Form for the same 274 

County agent of the poor 341 

Township insurance co. to auditor 347 

Form of— of committee of supervisors.... 527 

Representatives. 

in congress, when elected 449 

In general assembly, when elected 450 

Who may contest election of 474 

Vacancy in office of, how filled 479 

Residence. 

In pauDer act defined 313 

Pauper— for purpose of voting 320 

T<> constitute voter 461 

Permanent aboie necessary to constitute 462 

Resignation. 

Of town officers, justice to accept 91 

In case of, justices and constable— pro- 
ceedings 91 

Form of, by town officer 91 

Of town or district collector, when ac- 
cepted 403 

Of elective officers, to whom made 498 

Return. 

<jf election, certified to auditor 34 

Of election discontinuing township or- 
ganization 40 

Failure of town cleric to muke 98 

Special meeting-borrow money to build 

bridge 141 

Form of constable's service of notice 165 

For election in members board of equal- 
ization 391 

Revenue. 

What property taxable 349-351 

Property exempt 351-353 

Personal, how valued 353-355 

Real estate, how valued 355 

Personal property, when listed 355 

Manner of listing and who shall list. 356-357 

Where personal property listed 357 

Farm property, where listed 358 

Manufacturer's property, where 359 

Real estate exempt, when sold how tax- 
able 359 

Personal in transitu, how listed 359 

Nursery stock, how listed 359 

Personal of banks bankers, brokers, etc 359 

Steamboat companies, vessels, etc 359 

Personal of gas and coke companies 359 

Of street railroad, plank, gravel road, etc 359 



Page 
Revenue — Continued. 

Of stage companies, etc 360 

Of express or transportation companies.. 360 

Consignee, list his interest 360 

Listing on behalf of other*, where 360 

Bond and stockholders, list interesi 360 

Money secured by deed 360 

Removal between first of May and July 

—how assessed 360 

Place of listing when fixed by county 

board 361 

Persons required to make schedule 361 

Duty of assessors to determine value 361 

Refusal to list— penalty 361 

Schedule, iorm of. 361-3(53 

Assessor may examine owner under oath 363 
Refusal to answer— assessor may list, etc 363 

Falsely swearing— guilty of perjury :.63 

Rules for listing credits 363-:!64 

When debts not deducted 364 

Deductions to be verified on oath 364 

Fraudulent statement— penalty 364 

Rules for listing and valuing property 

of banks brokers and stock jobbers 364 

Of pawn brokers 365 

Of corporations, capital stock and fran- 
chise 365-367 

Of banks, state and national 367-369 

Manner of listing and valuing railroad 

propcrtv. 369-373 

Telegraph companies make schedule 373 

Board of equalization to assess, etc 374 

Tax on capital stock, how collected 374 

False schedule— penalty 374 

Making false lisc etc— perjury 374 

L'eal property— where listed— who liable 

for tax 375 

Leasehold interest, when listed 375 

Government land, when taxable 375 

Illinois Central lands, when taxable 375 

Swamplands, when taxable 375 

When land to be surveyed and platted... 375 
Neglect to survey, county clerk to cause 376 

Land between counties, how listed 376 

Land between towns, how listed 377 

Appointment of assessors 379 

Oath and duties of assesssors 380 

Review of assessment by town board 383 

Return of assessor to county clerk 384 

Pay of assessor and deputy 386 

Duties of clerk on return of assessment 

books 387 

Equalization of assessment by county 

board 387 

Report of assessment by clerk to auditor 

for equalization 389 

State boardof equalization 390 

Rates of taxation 395-397 

For state purposes 396 

For county purposes 397 

Towns, cities, etc 397 

Collector's books— extending rates 398 

Books, how made— rates, how extended.. 398 
Qualification of town and district collec- 
tors 400 

Delivery of collector's books— warrants.. 401 
Collector in counties not under town- 
ship organization 403 

Vacancies and resignations in office of 

collectors 403 

County treasurer and sheriff when ex 

officio collector of 404 

What kind of money collected in 40.H 

Bond— oath— approval of bonds 404-J05 

Manner in which taxes collected 408 

Distress for taxes 409 






612 



INDEX. 



Page 
Revenue — Continued. 
Sworn statements to be made by collect- 
ors 412 

Return of town and district collector to 

county 413 

Return of delinquent special assess- 
ment 415 

County collector's receipts— powers 416 

Advertisement for judgment and sale 417 

Judgment— appeals— proceedings 422 

Sale of delinquent lands for taxes 425 

Certified copy of sale lists sent to auditor 429 

Redemption of lands from sale 429 

Tax deeds 432 

Forfeited property 436 

Final settlement of county collector 438 

Partial settlement of county collectors 440 
, Final settlement of county collector 

for state taxes 411 

Lien of taxes 443 

Bondsman of collector or treasurer— who 

not eligible 445 

Bond of collector held as security 445 

Suits against collectors 445 

Sale of real estate in behaif of state- re- 
demption 447 

Double payment of tax— refunding 448 

When assessment rolls destroyed 449 

Other duties of auditor 449 

Omitted property— saving clauses 431 

Who may administer oaths 433 

Penalties against officers 453 

County to furnish books and blanks 454 

County funds— manner of keeping 455 

Definitions in revenue act ■■ 456 

Repealing clause 457 

Bridges on state border— how assessed... 458 

Illinois Central road, how assessed 45S 

Agricultural and other statistics 460 

Dogs— assessment of. 461 

Right of Way. 

For roads— damages to be ascertained 

before opening 159 

For private roads— damages how paid... 176 
For combined drainage ; how acquired.. 252 
Effect of release of right of way and fil- 
ing 252 

Damages for right of way to same, appor- 
tionment to all owners 252 

Agreement for right of way and release 

of damages 252 

Venire to assess damages for right of way 

for drains 253 

Proceeding by justice to assess da ja ages 253 
Notice to land owners, assessment of 

damages for drains 253 

Form of such notice 253 

Service thereof 253 

Form of request for jury to assess 253 

Form of venire for jury to assess 254 

Form of verdict of jury to assess 254 

Form of justices's entry to assess 2i5 

Form of certificate to transcript 255 

Trial on assessment of damages 251 

Record of proceedings, assessment of 

damages 256 

Damages for right of way for drains, tax 

to be paid before entry 268 

For drains in special district, how ac- 
quired 280 

Assessment of damages for 281 

Assessment of damages ; form of notice 

of 281 

Assessment of damages ; service of no- 
ticeof. 281 



Roads and Bridges. 

Elector*' power to raise money for, etc 54 

Fines of supervisor and town clerk, ap- 
plied to repairof. 94 

In general 115-137 

Public highways defined 115 

Duties of commissioners of highways 116-137 

Have charge of lift 

Construct permanent roads 11& 

How work to be done 118 

Employ general superintendent 120 

Divide work — let contracts— appoint 

overseers— employ laborers 121 

Not to be interested in contracts 121 

Not to let contracts, etc., except as or- 
dered at meeting 121 

Lay out, alter, widen and vacate roads.... 121 
Form of order ascertaining road imper- 
fectly described 122 

Purchase of tools and implements 122 

Guide boards erected 123 

Plowing on highway prohibited 123 

Form of consent to plow on highway 123 

Drainage— joining with landowners 124 

Form of contract to lay drain 124 

Willow hedge destroyed— tree planting... 124 

Form of contract to destroy hedge 124 

Ditches and drains— entering on adjoin- 
ing land 125- 

Form of consent to plant trees... 125 

Form of consent to enter land to open 

ditch 123 

Proceeding when owner does not con- 
sent 125 

Gradi ng— sid e w al ks—co rn e r stone:-— cul- 
verts 127 

Form of verdict assessing damage:- for 

opening drain 127 

Organization o'f board— commissioners 

of highways— officers— meetings 127 

Town clerk, clerk of board— keep record 128 

Form of notice for special meeting 128. 

Treasurer of commissioners — duties — 

bond 123 

Form of order on treasurer I2i> 

Form of bond of treasurer V19 

Poll tax — collection in money 130 

Exemption from poll tax 130- 

Form of list for poll tax 131 

Form of order assessing poll tax 131 

Collection of poll taxow execution 132 

Form of notice to pay poll tax 132 

Semi-annual meetings of commissioners — 

fix rate 133 

Additional tax in emergency 133 

Form of determination rate to be levied... 133 

Assessments to pay damages 131 

Levy certified to county clerk 134 

Taxes in cities and villages lot 

Form of certificate for greater levy 134 

Form of consent to additional levy 134 

Tax in village— to whom paid 135 

Form of rate agreed upon by commission- 
ers 135 

Payment of damages 136 

Report of commissioners to town auditor. 136 
Form of order on treasurer, for damages... 136 
Bridges. 137-14 S 

Bridges— county aid 138 

Form of petition for aid 13«> 

Special election to borrow money to build 

bridge 140 

Bonds — money borrowed to build bridge. 141 
Form of bond given for money borrowed... 142 
Bridges over streams dividing towns and 
counties 14C 



INDEX. 



613 



Page 
Roads and Bridges— Continued. 

Contracts for bridges — joint, between 

towns and counties 143 

Form of contract, adjoining towns, to build 

bridge 143 

Kefusal of town to make contract for 

bridge 144 

Monev may be borrowed— special elec- 
tion 144 

Repairs on bridges built by joint coutract 143 

Notice to other town to aid. in repairs 145 

Failure to aid — suit for proportionate 

share 145 

Contracts for repairs of bridges— notice 

of lettings 146 

Form of notice 146 

Form of contract to build bridge 146 

Contracts for bridges on town lines 147 

Advertise for bids 147 

Form of contract to construct or repair 

road 147 

Rejection of bids 148 

Contract and bond of successful bidder 148 

•Contracts payable on completion of work 148 

Penalty for driving faster than a walk 148 

Laying out roads 149-15S 
Laying out road — width — opening — va- 
cation 149 

Not opened in two years, deemed vacated 149 
Commissioners may alter, widen, vacate 

when petitioned 150 

Width of streets reduced when petitioned 

for 150 

Petition to describe road— form of. 150 

Flearing on petition— notice of meeting.... 150 
Perition received — meeting to examine 

route and hear reasons 152 

Notice of meeting to hear reasons 153 

3Ieeting may be adjourned 154 

Decision of commissioners filed with 

town clerk 155 

Decision endorsed on petition 155 

Form of notice of adjournment 155 

Petition for vacation 156 

Order vacating filed with town clerk — 

form of order 156 

Purvey and plat of new road, or altera- 
tions 157 

Changes in route may be made 157 

Form of surveyor's report, survey of 

road 157 

Form of surveyor's report, survey of alter- 
ation 157 

Roads re-surveyed on petition 158 

Plats and surveys filed with town clerk... 158 
Location of new road online of old not to 

vacate, unless s 158 

Damages— assessment 159 

Commissioners ascertain damages before 

locating 159 

May make order in case of appeal, when.. 159 

Damages by agreement 159 

Owner may release damages 159 

Form of agreement as to 160 

Form of release of. 160 

Damages assessed by jury 160 

Commissioners make certificate for jury.. 160 

Form of certificate for jury 163 

Form of summons to owner to prove dam- 
ages 163 

Service of summons upon minor or non- 
resident 164 

Notice to unknown owners 164 

Form of affidavit, owner non-resident 164 

Form of return on summons, owner un- 
known 165 



Page 
Roads and Bridges— Continued. 
Form of notice to occupant, owner un- 
known 165 

Venire for jury— form 165 

Qualifications of jurors 165 

Venire may be changed 166 

Conduct of trial 166 

Title of suit — evidence 166 

Jury may view ground 166 

Form of oath to jury 160 

Benefits may be considered 167 

Form of verdict assessing damages 167 

Form of docket entry 167 

Final meeting of commissioners 168 

Notice of final meeting 168 

Form of notice 168 

Eevocation— new trials 168 

Order locating survey filed with clerk 169 

Form of order revoking proceedings 169 

Form of order laying out, etc., roads 170 

Location when damages released 171 

Form of adjournment of meeting 171 

Form of record of proceedings 173 

Inducements authorized 173 

Record of town clerk — evidence 174 

Removal of fence— notice 174 

Form of contract offering inducements... 174 
Form of certificate, town clerk, to copy 

of record 174 

Expense of removal of fence 175 

Form of notice to remove fence 175 

Roads for private and public use 176-179 

Private roads— width 176 

Proceedings on laying out 177 

Opened within two years 178 

Form of petition for private road 17S 

Private — over inclosed lands — crops 179 

Town and county line roads 179-182 

How established 179 

Form of order establishing 180 

Roads between towns— expenses 181 

Form of order allotting repairs 181 

Form of order dividing expense between 

towns 182 

Form of order referring matter of ex- 
pense 182 

Form of award on division of expenses... 182 
Road appeals 183-190 

To supervisors— petition 183 

Form of petition for appeal 183 

Justice to summons supervisors 183 

Form of summons to supervisors 184 

Decision on appeals final 185 

Form of notice of appeal 185 

Form of affidavits of service of notice 185 

Supervisors to report— pay 186 

Form of order of supervisors on appeal... 186 
Form of order — appeal from decision 

refusing road 187 

Party appealing to file bond 187 

Form of appeal bond 189 

Disagreement between commissioners of 

different towns 189 

Form of certificate of disagreement 190 

Appeal, when disagreement 190 

Form of petition for appeal 191 

Town, county and state line roads 191 

Denned 191 

Repair of. 191 

Location on state lines 191 

Compensation of commissioners— Pen- 
alties 191 

Compensation fixed 191 

Kefusal or neglect of duty — penalty 192 

Form of statement for compensation 192 



614 



INDEX. 



Page 
Roads and Bridges — Continued. 
Law of the road— Regulations and 
penalties 192-200 

Carriage defined 193 

Act not to interfere with ordinances. 193 

Destroying or defacing guide-boards — 

penalties 193 

Obstructing highways— penalties 193 

Permission to plow upon road 194 

Depositing garbage in roads— penalties... 197 
Destroying or injuring sidewalks. ..penal- 
ties 198 

Suits for recovery of fines and penalties... 198 

Suits on contracts 398 

Bond for costs required— form 198 

Fines paid to treasurer of commissioners 199 

Cattle crossings under roads 199 

Form of consent for crossing 199 

Right of the road— penalty 199 

Drunken drivers— penalties 200 

Labor system 201-221 

Petition to adopt system 202 

Elections— effect if adopted 202 

Form of petition for special town meet- 
ing 202 

Form of, submit question at annual meet- 
ing 202 

Lists filed by overseers 203 

Town clerk deliver to commissioners 203 

Commissioners assess labor and road tax... 203 

Who liable to labor on road 203 

Form of notice, special meeting 203 

Commissioners annually ascertain amount 

to be raised 204 

Tax in cities and villages, where paid 204 

Commissioners prepare assessment rolls... 204 

File with town clerk 205 

Form of order assessing labor and road 

tax 205 

Form of list, assessment highway labor... 205 
Town clerk copy list, deliver to overseer... 206 
Form, alphabetical list personal property 

tax payers 206 

Form, list of land road tax 206 

Overseers add names to list 207 

Labor on private roads 207 * 

Town clerk post notices of assessment 207 

Payment in labor 208 

Neglect, duty by commissioners— penalty 208 

Commissioners appoint overseers 208 

Duties of overseers 208 

Form of notice, assessment property tax. 208 

Form of appointment of overseer 208 

Refusal overseer to serve— vacancy 209 

Form, receipt for poll tax worked out 209 

Form, list of inhabitants liable to work... 209 

Appointments filed with town clerk 210 

Overseer refusing to act — penalty 210 

Notice to work on highway 210 

Form, appointment overseer, case of, va- 
cancy 210 

Form/notice to person appointed 210 

Commutation of labor in money 211 

Person commuting— when to pay 211 

Form, notice to work poll tax..." 211 

Teams maybe required 212 

Labor by substitute 212 

Penalty for idling 212 

Refusal or neglect to work or commute— 

penalty 212 

Complaint by overseer, person in default. 212 

Justice to summons person in default 213 

Form of summons 213 

Trial— judgment— costs— execution 213 

No exemption from judgment 213 

Collection of judgment 213 



Page 
Roads and Bridges— Continued. 

Form of docket entry of judgment 214 

Fines — to whom paid 214 

Fines set off against tax 214 

Acceptance of excuse, no exemption 214 

Overseer to give notice to work out tax... 214 

Receipts for taxes paid 215 

Overseer deliver assessment lists to super- 
visor 215 

Refusal or neglect to deliver lists— penal- 
ty 215 

Form, affidavit overseer on return of lists 215 
Three-fourths labor worked out before 

September 216 

Report of overseer 216 

Overseer to render account 216 

Form, overseer's annual account 216 

Failure to render account — penalty 217 

Supervisors lay lists before board 217 

Delinquent taxes— how levied and col- 
lected , 217 

Compensation of overseers 218 

Commissioners annually ascertain, etc., 

road and bridge purposes 218 

Levy tax for bridge, etc., purposes 218 

Form, tax levy for bridge and other pur- 
poses 219- 

Form, statement of tax levy by commis- 
sioners ; 219 

Town clerk furnish plat of road districts.. 220 

Taxes extended to designate districts 221 

Collectors furnish abstract of road tax 221 

Taxes paid according to abstracts 221 

Form, notice, vote for larger tax 221 

Form, overseer's order on treasurer 221 

Destruction of noxious weeds 222 

Cockle-burr weeds to be destroyed 222 

Failure to comply — penalty.....". 222 

Plat of highways to be recorded 225 

Commissioners to makeplat 223- 

Where recorded 223 

Failure to comply— penalty 225 

Effect of vacating property 223-224 

Rights of adjoining owner 223 

Railroad tracks upon highways 224 

Crossing, etc., to be restored 224 

Consent to construct to be obtained 224 

Form of consent 224 

Gravel, rock & macadam— hard roads 225 

Petition for— from 225 

Form of ballots 226 

Form, notice to vote to levy tax 226 

Commissioners to levy tax 226 

Form, certificate of levy by commission- 
ers 226 

Tax not to extend beyond five years 226 

Levy and collection of tax 226 

Treasurer of commissioners, receive fund 227 

Bond of treasurer— form 227 

Form, certificate of amount voted 227 

Tax— to whom paid 227 

Fees allowed treasurer and collector 228 

Commissioners employ surveyor 228- 

Make plans, etc 228 

Advertise for bids — notice 228 

Form of notice for bids 228 

Plans, requisites of. 228 

Commissioners open bids— let contracts... 22i> 

Bond to accompany bid 229 1 

Commissioner not to be interested.... 229 

Form of contractor's bond = 229 1 

Commissioners may reject bids 230 

Surveyor make estimates 230 

Form of estimate and certificate 230 

Payment to contractor 230 

Record to be kept by commissioners 230 s 



INDEX. 



615 



Page 
Roads and Bridges— Continued. 

Report to t»wn auditors 230 

Construction of road— material 231 

Taking material from adjoining land 231 

Proceedings to enter land for material- 
agreement. 231 

Form, agreement, damages for taking 

material 231 

Compensation of commissioners and em- 
ployes 231 

Powers of board, counties not under town- 
ship organization 232 

Ballots— election— tax 232 

Roads to be free 232 

Surplus funds — retained to repair roads... 232 
Steam engine on road; duty of person in 

charge 233 

Blowing whistle ; when unlawful 233 

Driving engine over bridge, etc.; duty in 

crossing 233 

Penalty; violation of statute 233 

Highwaysmay be used for drainage, when 269 
Form of notice to railroad co. to build 

bridge 269 

Drain comm'rs to make necessary bridges, 

etc 270 

Default of railroad co. to construct 

bridges, etc 270 

Construction of bridge over drain 292 

Road Labor. See Roads and Bridges. 
Rock Roads. See Roads and Bridges. 
Sale. 

Animals distrained or impounded 57 

Poundm asters— form of notice 61 

Sale for tax. 

Form of certificate 426 

Payments after judgment to be noted on 

record 426 

County clerk to assist at sale 426 

When land sold clerk to enter on record . 426 
Land redeemed, name of party entered on 

record 426 

Record book furnished by county 427 

Lands forfeited to be noted on record 427 

Manner of conducting sale 427 

Land how sold — pavment 428 

What land forfeited to st ate 428 

Failure of collector to attend 428 

Failure of county clerk K> attend 428 

Payment by purchaser 428 

Failure of sale, land offered again 428 

Purchaser to receive certificate 428 

Certificate assignable 429 

County clerk make index to sales record... 429 

Certified copies of lists sent to auditor 429 

Real property, how redeemed from 429-430 

When purchaser suffer land sold 430 

Books and records of county clerk evi- 

d nee of sale, etc 430 

Erroneous sale— correction made 431 

Money paid back to purchaser at 431 

Effect of redemption from 432 

Of real estate on execution for state 447 

Purchased for, by state 447 

How redeemed on 447 

By wrong name not to vitiate 453 

Of bridge for taxes 458 

Schedule. 

Persons to make and to deliver to as- 
sessor 361 

Form of. 361 

Requisites of, required of railroad 369 

When to be made 369 

Of rolling stock of railroad— requisites.. 370 



Page 

Schedule— Continued. 

When to be returned 371 

Of railroad to auditor— requisites of 371 

Made according to instructions of auditor 372 

Neglect to return to county clerk 372 

Neglect to return to auditor 372 

Penalty for neglect to return 372 

Of telegraph company— requisites of. 373 

Making false —penalty 374 

Making false under oath, perjury 374 

Agricultural and other, how p'repared, 
etc 400 

Secretary of Slate. 

When elected 469 

Deliver election contest notice 496 

Prepare registry blanks 506 

Senators. 

When elected 470 

Vacancy in office, how filled 499 

Service. 

Of process on town, how made 64 

Settlement. 

Supervisor to make annual 96 

Justices and town clerks to certify to 96 

Final, of county collector 43S-4tO 

Partial, of county collector 440 

Final settlement of collector for stat; 
taxes 441-443 

Sheriff. 

Post notices of first town election > 3 

Ex officio collector of taxes 38 

When elected 45 

Sidewalk. 

Space for— left when grading roads 127 

Penalty for injuring 198 

Special Assessment. 

For cost of combined drains, how made. 256 

Form thereof. 257 

Classification of land, how made 256 

Appeal from classification 258 

Form of order confirming 259 

Form of appeal bond 259 

Basis of assessment for combined drain- 
age 261 

Form of assessment list for combined 

drainage 261 

Collection not delayed by appeal 263 

When payable, by installments 263 

Lien of special assessment for drains 263 

Form of order to pay by installments 263 

Tax list to be filed; copy to treasurer 263 

Form of certificate to copy 264 

Delinquent list; sale and right to pur- 
chase 265 

Form of delinquent list 265 

Certificate to delinquent list 266 

Collection after delinquent list returned 266 
For drainage against public or railroad 

company, when 269 

For drainage in special district 282 

Return of delinquent, how and by whom 

made 415 

When transferred to tax books 415 

When to be returned— when barred 452 

Special Town Meetings. 

When held— request for— notice of 69 

Form of notice of 69 

Form of statement to be filed for 69 

Notice to set forth, object of. 70 

Business at, restricted to subjects stated 

in request 70 

Powers of electors at 70-71 






616 



INDEX. 



Page 
Special Town Meetings— Continued. 

To fill vacancies 70 

Raise money to repair highways, etc 71 

Act on subjects postponed at annual 

meeting 71 

To borrow money to build bridge, how 
called 140 

State's Attorney. 

To bring suit against public officer, fail- 
ure to make annual statement 114 

To make complaint in case of pauper, 

etc 330 

When elected— term of office 471 

State Board of Agriculture. 

Statistics for, how prepared 460 

Duties and powers of secretary of. 460 

State Board of Equalization. 

See Board of Equalization. 
Statements. 
Form of, by supervisors of affairs of town 94 

By commissioners of Canada thistles Ill 

Public officers to make 113 

What to be shown 113 

Make oath to same 113 

Publish in newspaper— cost 113 

Not to apply to certain officers 113 

Copies to be posted, when 113 

When not to publish 113 

Failure to make — penalty 113 

Commissioners— of service 191 

Affidavit to— form of statement— where 

filed 192 

Form of by drainage commissioners 274 

Of secretary of insurance co. to make 

annual 347 

Statistics. 
Agricultural and other, collected by as- 
sessor 460 

County clerk to provide blanks for 460 

Secretary of board of agriculture to pre- 
pare 460 

County clerk to revise and correct re- 
turns 461 

State Line Roads. See Roads and Bridges. 
Subpoena. 

Fence viewer's power to issue 317 

Form of, for witness 317 

Substitute. 
Person assessed to work on highway 

may employ 212 

Penalty, failing to work eight hours in 

each day 212 

Fine imposed on person assessed 212 

Sue. 

Town's power to, and be sued 51 

Supervisor sue for penalties to town 95 

Canada thistle commissioner, power to 

sue for penalties Ill 

Highway commissioners sue for penal- 
ties 198 

Drainage districts may, and be sued... 206-232 

Counties power to, and be sued 514 

County board to sue and defend suits 522 

Suits. See Sue. 
Electors raise money to prosecute and 

defend 54 

Electors of town, power to provide for in- 
stitution and defense of 55 

By or against town, how conducted 64 

Service on town, how made, 64 

By town, in what name brought 64 

On supervisor's bond 92 



Page 
Suits— Continued. 
Supervisors to commence for penalties 

to town, etc 95 

Prosecutions by commissioners of Can- 
ada thistles ill 

For penalties under road law, how and 

by whom commenced 198 

On contracts by commissioners 198 

Drainage districts, defend or compromise 268 

Against member of insurance co 347 

By members of insurance company 347 

On collector's bond, when brought 414 

County board mav institute, for taxes on 

forfeited property 437 

Auditor to commence on failure of col- 
lector to settle, etc 445 

Where same may be brought 445 

Jurisdiction of court 445 

Proceedings in suit by others 445 

By cities, towns, etc., on bond of collector 446 
Steam Engine. 
Duty as to propelling engine on highway 233 

Blowing whistle; when unlawful 233 

Duty on crossing bridge with engine 233 

Penalty, violation of statute 233 

Summons. 

How served on town 64 

To owner— entering land to open ditch.. 126 

Form of. 126 

In suit for poll tax unpaid 132 

Form of, to supervisors to hear appeal.... 183 
Justice to issue on complaint of overseer 213 

Form of, for refusing to work 213 

For refusing to work on road— form 213 

Issue and service in proceeding for farm 

drainage 237 

Form of summons in proceeding for 

farm drainage 238 

Town clerk to summon supervisors on 

appeal from drainage assessment 259 

Form of summons on supervisors on ap- 
peal from drainage assessment 260 

Form of summons on vacancy of super- 
visor 260 

Requisites in case of failure to support 

pauper relative 330 

Issued on election contest 496 

Supervisors. See Board of Supervisors- 
County Board. 
Duties on disposition of property on di- 
vision of towns 44 

On annexation of towns 45 

In division of personal property when 

town divided 46 

When to meet, of change of town bound- 
ary. „ 46 

Meeting, how called— notice to be given 46 
Form of proceedings— division personal 

property 46 

When to give notice of town meeting 66 

One of judges of election 68 

Elected at annual town meeting «. 71 

To be ex officio overseer of poor 71 

When additional supervisors elected 71 

Term of office 71 

Canvass returns of election 75 

Subscribe oath when elected 85 

Refusing when elected to serve— penalty 87 

His duties 92-97 

Shall give bond 92 

Suit on bond— by whom brought 92 

Receive and pay out money for town 93 

File with town clerk statement of affairs 

of town 93 

Form of statement of affairs of towns 94 



INDEX. 



617 



Page 
■Supervisors— Continued. 

' Neglect to make statement— penalty 95 

Prosecnte for penalties, given to town.... 95 
Keep account of receipts and expendi- 
tures in book 95 I 

To deliver book to successor 96 

Make annual settlement to board of aud- 
itors 96 

Justice and town clerk to certify to 96 j 

Form of supervisor's book 96 

Attend meeti ngofcounty board 96 

Lay accounts presented before town 

auditors 96 

Failure to perform duties— penalty 97 

Assistant supervisor no power as town 

officer 97 

Powers and duties of, in Cook county 97 

Compensation of, in Cook county 97 

One of board of town auditors 99 

Board of town auditors to examine ac- 
counts of 100 

Fees allowed to 105 

Lay delinquent list before board of. 217 

Summoned to bear road appeal 183 

Form of summons to 184 

Fees in appeal cases 186 

Powers in road appeal— call jury to 

assess damages 184 

Form of order on road appeal— decision 

in favor of road 186 

Make report of proceedings and deci- 
sion 186 

Decision to be final 186 

Majority to decide 186 

Form of order— decision refusiug road... 187 
Order town clerk to call special meeting 191 
With town clerk to issue bonds to build 

bridge 191 

To act as treasurer of drainage district... 235 

Bond as treasurer of drainage district 236 

Appeal to supervisors as to classification 

of lands in drain district 258 

Town clerk summon supervisors on 

such appeal 259 

Proceedings on appeal 260 

Form of summons on appeal 260 

Form of summons on appeal, vacancy 

of supervisor 260 

Order confirming comm'rs decision 260 

Keep dog license fund— bond by 462 

Superintendent of Public Instruc- 
tion. 

When elected 469 

S uperintendent of Schools. 

Of county, when elected 465 

Sureties. 
On collector's bond, whon discharged ... 406 

May attach property of 406 

Death of collector, when not to dis- 
cbarge 406 

Who not eligible as, on collector's bond.. 445 

Purvey. 

New road or alterations 157 

Form of report of. 157 

Re-survey, when ordered 158 

Petition— order for re-survey— form 158 

Order locating— filed 169 

When ordered at first meeting of com- 
missioners 172 

Of premises, in view of combined drain- 
age 244 

Right of entry for survey in drainage 

comm'rs 26^ 

Penalty for preventing such entry 269 



Page 
Surveyor. 

Make plat of road . 157 

Report survey and plat to 157 

Form of report and survey of road 157 

Form of report of survey of alteration 

of road , 157 

Employed by drainage commissioners — 

duties of 215,251,277 

Form of report of survey and estimate 

for drains 251 

Right of entry for survey of drainage 

system 26£ 

Penalty for preventing entry 269 

Tax. See Revenue. 
Division or alteration of town not affect 

assessment or collection 4£ 

Power of towns to raise money by 53 

Raised for bridges, etc., to whom* paid... 54 

How raised for town charges 102 

For making and repairing roads, by 

whom ascertained 133 

Additional, in ease of emergency 133 

Of town lying in city to be paid to treas- 
urer of 135 

When expended beyond limits to be by 

consent of road commissioners 136 

Road tax, how assessed 135-204 

Form of order assessing labor and road 

tax 205 

Form of notice of assessment of property 

tax 208 

Notice to person for land or personal 

property 214 

Levy of delinquent, when and how made 217 
Commissioners to annually ascertain 

for, etc 218 

Form of levy for highway purposes 219 

Form of statement of tax levy 219 

Form of notice for voting at town meet- 
ing 221 

Collection of special assessment for 

drains not delayed by appeal 263 

Special assessment for drains when pay- 
able 263 

Special assessment lor drains 263 

Lien of assessment for drains 263 

Form of order to pay by instalments 263 

List to be filed ; copy to treasurer 263 

Form of certificate to copy 264 

Delinquent list; sale and right to pur- 
chase 265 

Form of delinquent list 265 

Certificate to delinquent list 266 

Collection after delinquent list returned 266 
Levy in special drainage district inade- 
quate ; additional levy 285 

Levy in special drainage district pay- 
able in instalments 285 

Assessment in special drainage district 

recorded 286 

Assessment, time to pay may be ex- 
tended 287 

Assessment for drainage, lien on land.... 291 
On railroad property, how and by whom 

extended and collected 373 

Rates of entered by county clerk on 

books 378 

Lien of taxes 443 

Appeal from tax laid not delay collec- 
tion 263, 389 

Double payment, refunded 448 

Double assessment— refunded 448 

Uncollected added to subsequent year.... 451 
County board levy for county 518 

Tax Certificate. See Revenue. 



618 



INDEX. 



Page 
Tax Deed. 

Purchaser of land when entitled to 432 

Serve notice on occupant, etc 432 

Affidavit of compliance with law 433 

Swearing falsely, guilty of perjury 433 

Who entitled to 434 

May include several tracts 434 

Fee for making 434 

To be recorded 434 

Form of. 435 

Evidence on which issued, recorded 435 

Effect of, as evidence.. 435 

When to be taken out 436 

Auditor to take for property bought for 
state 447 

Tax Sale. See Sale for Tax. 
Telegraph Companies. 

Return schedule to auditor— requisites of 373 
Personal property of, how assessed, etc... 374 
Term of Office. See Election— Office. 

Determined by lot— when 38 

Form of determination of commission- 
ers by lot 39 

County commissioners — discontinuing 

towns 40 

Officers— when town divided 43 

Justices of peace 43 

Of town officers, one year 87 

Officer appointed to fill vacancy 89 

Commissioner special drainage district.. 279 

County assessor 379 

Of state officers 449 

Tile Drains. See Roads and Bridges — 

Drainage. 
Towns. 
Division of, when made— how and by 

whom 35 

Conform to government survey 35 

Fractional, how disposed of. 35 

When too few inhabitants, to be added 

to or divided 36 

When divided by creek or river, how dis- 
posed of. 36 

Naming of. 36, 460 

County board, power to change name..36, 460 

No two named alike 36 

Report of bounds and name to county 

clerk 36 

Abstract of report of bounds and name 

transmitted to auditor 37 

When names alike— proceedings 37 

Record of names and boundaries kept 

by auditor 37 

Firsttown election 37 

How conducted 38 

Refusal to organize or elect officers- 
proceedings 39 

Continued refusal of— county board to 

appoint officers 39 

Whenannexedto another town 39 

When city to constitute a town 39 

Alteration of boundaries, division of 

town property 41-49 

Form of petition for 42 

County board may alter boundaries of 

and create new towns 41,460 

Size of new town created 42 

Form of petition for new 42 

Requisites of petition for— notice of, etc 42 
Incorporated town how and when di- 
vided 42 

Form of petition dividing town 42 

Form of notice for creating new town or 
changing boundaries 42 



Paok 
Towns- Continued. 

When divided— election to be held 43 

When parts of several taken, no election 

necessary in town from which taken.. 43 
Officers residing in new town, office va- 
cant 43 

Terms of officers in new town 43 

Division or alteration not affect assess- 
ment or collection of taxes 43 

Disposition of real estate on division of.. 44 
Form of agreement in case of disposition 

of property.... 44 

Disposition of property on annexation... 45 

Form of deed of conveyance by 45 

Town divided. , 45 

Divided or altered, apportionment of 

personal estate 46 

Cemetery situated in, after division be- 
longs to such 47 

Debts of, how apportioned 47 

Disputes in division of debts or property 

to whom submitted 47 

Contiguous, by whom and how united..4?-48 
Petition for uniting contiguous— requi- 
sites 4S 

Union not complete until expiration.of 

term of officers they to serve 49 

Corporate powers of towns— town meet- 
ings— by-laws— ru'es and regulations..49-6£ 

Corporate name, style of 49 

Actions against, to be against it as such.. 50 

Corporate powers of, enumerated 51-52 

Powers of electors of, at annual town 

meeting, 53-63 

Exception as to cities 6J 

Legal proceedings in favor of and against 

64-66 
How conducted— service on town, on 

whom 64 

In what name suits brought— exception.. 64 
Who competent as witness and jurors.... 6"> 

May prosecute action before justices 65 

Partition of town lands 65 

Annual meeting, when held 6tf 

Notice of annual meeting,by whom given 6ei 

Each town an election precinct 67 

Change of place town meeting, how made 68 
Form of request to change place of meet- 
ing 68 

Form of notice of request 68 

. Special meeting in, when called— reque*t 69 
Powers of electors at special meeting.. .70-71 

Vacancies in office, how filled 70 

Election of officers of, wben held 7L 

Of trustees of schools, when held 71 

Election of commissioners of highways 

in, when held 7? 

Organizing town meeting— moderator- 
duties, etc 73 

Duties of town clerk at town meeting 73 

When lies in incorporated city, common 

council fix election precinct 75 

Common council fix voting places, ap- 
point judges 75 

Ballots at election deposited in separate 

box 75 

When town lies in incorporated city.time 

of holding town meeting 76 

General election law apply to election 

held in 75 

No registration required at election in... 75 
Form of poll list kept at town meeting... 76 

Funds of, managed by supervisor 93 

Penalties, supervisor to prosecute for 95 

Commissioners of highways to have care 
of roads and bridges- in 116-117" 



INDEX. 



019 



Page 
Towns — Continued. 
When to pay damages in establishing 

private road 177 

Roads on line of, how established 179-181 

Bonds of— for building bridge 110-142 

When to bear expense of town line 

bridges 143 

When to support poor in 332 

Town Accounts. See Accounts. 
Town Auditor. See Board of Town Au- 
ditors. 
Town Charges. 

Judgment against town or officers 66 

What deemed, enumerated 101 

Money to defray, how raised 102 

Judgment against highway commission- 
ers on contracts 198 

Town Line Roads. See Roads. 

Town Clerk. 

Cause bv-laws aud regulations to be pub- 
lished" 63 

Give notice of annual town meeting 66 

Request filed with, to change place of 

tow .i meeting 68 

When special meeting called request 

filed with 69 

Give notice of special town meeting 69 

Elected at town meeting 71 

Term of office 71 

Keep minutes of town meeting 74 

When absent, other person chosen to act 74 
Post notices where election held in town 75 
Clerk of town meeting in town in incor- 
porated city 76 

Keep record of proceedings at 76 

Read result of election at town meeting.. 77 

Give notice when tie vote, to parties 78 

Transmit to person elected notice of 78 

File list of town officers with county 

clerk 79 

Act as clerk of meeting for transaction 

of business 80 

Keep record— enter rules, etc., made by 

meeting 81 

Subscribe oath when elected 85 

Refusal to serve when elected, forfeit fc>25 87 
Form of notice bv, to one appointed to 

office 90 

Give notice of resignation of justice or 

constable to county clerk 91 

Make minute of resignation of town offi- 
cer on records 91 

When supervisor's bond forfeited, bring 

suit on 92 

Duty to approve bond of. 92 

Record supervisor's statement in record 

book 94 

Post copy of supervisor's statement 91 

Penalty for neglect to post statement 94 

General duties of. 97-9S 

Have custody of records, etc., of town.... 97 

Administer oaths to town officers 97 

Form of filing papers 97 

Keep record of town meeting, etc 98 

Deliver to supervisor certified copies of 

votes for raising money 98 

Form of certificate to copy of papers 98 

Form of certificate to entry of votes 98 

Certify to county clerk amount of town 

taxes required 98 

Failure to return tax— penalty 98 

Copies of papers filed same effect as orig- 
inals 98 

One of board of town auditors 99 



Page 
Town Clerk— Continued. 
Keep on tile, for inspection, accounts au- 
dited 100 

Read accounts at annual town meeting.. 100 
Keep on file certificate of auditors to 

claims 101 

Certify accounts audited to county clerk 101 

Act as clerk of town auditors 102 

Keep proceedings of town auditors in 

book 102 

Keep record of board of health 103 

Report board of health proceedings to 

meeting 103 

Fees allowed to 105 

Record estray notice in book 108 

Report commissioners Canada thistles 

filed with ill 

To be clerk of board commissioners high- 
ways 128 

Keep record of proceedings 128 

Approve bond of treasurer 129 

Notifv county treasurer of filing bond.... 129 

Certificate of levy filed with 135 

To certify ievy road tax to county clerk. 135 

Form of certificate 135 

Petition for special election filed with 140 

To give notice of special election 141 

Issue bonds for borrowed money 142 

Decision, laying out, etc., road, filed with 154 

Order vacating road filed with 156 

Plats and surveys of road filed in office.. 158 

Release of damages recorded by 159 

Order locating survey filed and'recorded 

by 169 

Record of papers relating to roads evi- 
dence 174 

Appeal bond, road cases— filed with 188 

Petition to adopt labor system, filed 

with 202 

Call special town meeting— labor system 202 
Give notice of meeting— vote for hard 

roads 225 

Make certificate of amount voted 226 

Records, proceedings, etc., filed with 230 

Deliver lists filed by overseers to com- 
missioners of highways 203 

Make copies of assessment roll, deliver 

to overseers 206 

Give notice of road tax assessed 207 

Give notice to person appointed overseer 210 

Certify plat of road districts 220 

Constituted clerk of drainage commis- 
sioners 235 

Duties as clerk of drainage commission- 
ers 235 

To keep drainage record 235 

Petition for combined drainage pre- 
sented to 241 

Petition for combined drainage to be 

filed by 2J2 

Issue and file notice of filing 243 

Form of notice of filing 243 

Bond on appeal from drainage com- 
missioners classification of land filed 

with 258 

On such appeal, clerk summon supervi- 
sors 259 

Form of summons 260 

Form of summons, vacancy of supervi- 
sor 260 

Petition for union drainage district filed 

with 275 

Notify county clerk of non-resident pau- 
pers coming in town, etc 333 

Form of notice to remove non-resident 
pauper 333. 



<j20 



INDEX. 



Page 
'Township Insurance Companies. 

Who may form company 343 

How formed— declaration— requisites of 

declaration 343 

Charter— certified copy evidence, etc 344 

Form of declaration to form company.... 344 

Form of charter for .*..... 344 

Number of directors 344 

Directors— how elected— term of office 345 

Subsequent elections, when held 345 

Corporate powers of 345 

Who may become members 345 

Manner of insuring 345 

Persons insured, votes entitled to 345 

President, treasurer and secretary, how 

elected 345 

Secretary and treasurer give bond 345 

Risks, how classified 346 

Hot insure beyond limits of district 346 

Loss— notify president 346 

When president and secretary may ad- 
just loss 346 

When committee to ascertain loss 316 

Failure to agree, claimant may appeal 346 

County court appoint committee of ref- 
erence 346 

Pay of committee 346 

Assessment, when and how made 346 

Notice of assessment to be given 347 

Suit brought, neglect to pay 347 

Suits may be brought for losses 347 

Secretary to prepare annual statement... 347 
Member may withdraw from company... 347 
Power to cancel policy by giving insured 

notice 347 

President and secretary to report to au- 
ditor 347 

Certificate of auditor— company pay for 348 

At organization to pay auditor $10 348 

How company may be dissolved 348 

Companies formed under act 1872 may 

organize under 348 

May accept adjoiniug townships, not ex- 

ceedingsix 549 

Manner of receiving contiguous town 54y 

Obligations not thereby impaired 550 

Town Meeting. 

Electors at— powers of. 53-63 

Notice of, how and by whom given 66 

annual, when held 66 

Notice, by whom and how given 66 

Form of notice of. 66-67 

What constitutes an election precinct for 67 

Place of holding fixed by electors 68 

Change of place— how made— proceed- 
ings 68 

Form of request for change 68 

Form of notice of request 68 

Special town meeting— how and when 

called 69 

Form of statement for special meeting... 69 

Notice of, by whom given 69 

Notice of special— business restricted to 

statement 70 

Form of resolution postponing subject 

for special meeting 70 

Towers of electors at special meeting.. .70-71 

May fill vacancies at special meeting 70 

Raise money for repairing highways, 

etc 71 

To act on subjects postponed from an- 
nual meeting 71 

Organization of— electors choose moder- 
ator 73 

Time of calling to order 73 



Page 
Town Meeting. Continued. 
Town clerk to be clerk ot— keep minutes, 

etc 74 

When absent clerk chosen by electors 74 

Town supply ballot boxes 74 

When additional ballot boxes used 74 

When assistant moderator chosen 74 

Take oath— subject to same penalties as 

moderator 75 

Under the direction of moderator 74 

Place for transaction of business, when 

more than one polling place 75 

Town in incorporated city, time of hold- 
ing 75 

Common council designate place 76 

Town clerk act as clerk of meeting 76 

Form of poll list, kept at 76 

Mode of conducting miscellaneous busi- 
ness 79-84 

Moderator call to order for miscellaneous 

business 79 

Town clerk to act as clerk of. 80 

Form of minutes of proceedings of 81 

Where no clerk present, meeting choose 

one pro tern 82 

Clerk pro tern take oath like moderator... 82 

Moderator to preside at. etc 82 

Moderator declare result of votes 82-83 

Business concluded moderator declare... 83 

When question may be reconsidered 83 

Disorderly conduct at— penalty for— how 

recovered 83 

Township Organization. 

Origin and progress 19, 32 

Act concerning 33, 106 

How adopted 33, 3 l J 

When township government commences 3f> 

Conform to government survey 35 

Fractional township— attached to ad- 
joining towns 35 

Where township has too few inhabitants, 

proceedings 3> 

Creek or river— boundary when 36 

Towns, how named— change of name 30 

No two towns to have same name 36-37 

Records of names kept by auditor 37 

Eefusal or neglect of town to organize 

or elect officers— second election 38 

Continued refusal— board to appoint offi- 
cers of town 39 

Terms of such officers 39 

Failure to qualify— proceedings 39 

When part of county not organized 39 

How discontinued 40-41 

Petition— election— result 40 

Disposition of records, business, property 41 
Alteration of boundaries and divisions 

of towns 41-49 

Corporate powers of towns 49-63 

Legal proceedings in favor of and against 

town 64-66 

Town meeting, annual and special 6i-7l 

Election of town officers 71-79 

Mode of conducting elections for town 

officers 71-79 

Mode of conducting town meetings — 

miscellaneous business 79-84 

Qualification and tenure of office 84-88 

Vacancies in town office— manner of fill- 
ing 88-91 

Supervisor and his duties 92-97 

Town clerk and his duties 97-99 

Board of town auditors 99-102 

Board of health 103-104 

Compensation of town officers 704-196 



INDEX. 



G21 



Page 
Track. 

Fencing of by railroad 319 

Of railroad, by whom assessed lor taxa- 
tion 393 

Treasurer. 

Of highway commissioners, when and 

how chosen 128 

Duties of— give bond 128 

Form of bond of 129 

Of commissioners of highways to pay 
road tax according to abstracts fur- 
nished by collector 221 

Of county to act as treasurer of special 

drainage oistrict 236,291 

Bond as treasurer of special drainage 

district 236,291 

Of drainage commissioners to have copy 

of tax list 263 

Bond of district drainage treasurer 263 

Form of same 264 

To keep account of all moneys 2H4 

Receipts and payments, how 264 

Form of order on treasurer 265 

Collect drain assessments after delinquent 

list returned 266 

Annual report required 273 

Form thereof. 274 

Township insurance company— elected... 345 

Of state, when elected— term 469 

Of county ex officio collector of county... 404 
Of county, when elected 471 

Trees. 

Electors at town meeting offer premiums 

for cultivation, etc 56 

Planting willows or cottonwood along 

road a nuisance 124 

Felling, to obstruct highway— penalty... 193 
Trials. 

Assessment of road damages 166 

New trials— road damages 168 

Assessment of drain damages..., 254,282 

Trustees of Schools. 

Elected same time as town officers 72 

Vacancy— election of, how ordered 73 

Vacancies. 

When town divided 43 

Filled at special town meeting 70 

Demand for books and papers, in case of 87 

In town office, how filled 88-91 

In board ■ r appointment— how filled— ex- 
ception 89 

Form ot notice given to one appointed 

to fill 90 

In town office in city filled by city coun- 
cil 107 

Of supervisor on appeal iu drainage dis- 
trict 260 

In state board of equalization — how 

filled 391 

In town or district collector, how filled.. 403 
When same vacant, powers of county 

collector 416 

In presidemial elector— how filled 468 

When elective office becomes vacant 498 

Who may determine 498 

In office of governor and lieutenant-gov- 
ernor 499 

In other state offices, how filled 499 

In senator or representatives 499 

In represenatives in congress 499 

In office of judges, etc 499 

In clerk of courts 50') 

In county officers 500 

Inboard of registry, how filled 506 



Page: 
Vacation. 

Roads— not opened in two years, vaca- 
ted 149 

Commissioners may vacate road 150 

Form of petition for 151 

Hearing on petition for— notice— meet- 
ing 153- 

Order vacating— form— filed with clerk.. 156 

Of road— form of order 158 

Of street, alley, highway, lane, effect of.. 223 

Effect of— as to owner's right 223 

Venire. 
To issue in proceedings to open ditches 

across lands 126 

To issue in assessing road damages, etc... 165 
Form of for jury to assess road damages 165 
To assess damage for drains, right of 
way 254 

Venue. 

Change— cases of laying out road 165 

Verdict. 

Form of, jury assessing road damages 167" 

Form of, jury assessing damages for 
drains 254 

Vote. 

Majority defined 35 

Canvass of, on discontinuance of town- 
ship organization 40 

Canvass— on uniting towns 48 

On change of meeting place— proceed- 
ings 6S 

Canvass of when several in ballot boxes. 75 
Supervisor, assessor and collector to can- 
vass and declare result, wnen 75 

In case of tie question to be determined 

by lot 78 

Form of notice of drawing lots in case 

of tie vote 78 

Form of memorandum of decision by 

clerk 78 

Result of, when to be declared by moder- 
ator at meeting 82" 

For reconsideration of business, vote re- 
quired to 83- 
Each member of board of town auditors 

to cast but one vote 90 

To borrow money to build bridge to be 

by ballot 140 

To build bridge between towns 144 

On adoption of labor system 202 

For electors, etc., by whom cauvassed.... 468 

When tie vote, how decided 468 

At general election by ballot 477 

Canvass of— proceedings 479 

Affidavit of qualification to 483 

Convicts disqualified to 483 

When and by whom canvassed 484 

^'ie vote— drawing lots 486 

illegal— penalty 488 

Disclosing— penalty for 491 

Tie vote on hearing of contest— decided 

by lot 497 

On transfer of territory to county, effect 

of 508 

On election held, by whom canvassed.... 51 1 

On election held, for additional tax 520 

On election held, for issuing bonis 521 

On election held, for county bonds 524 

Voters. 

Qualified can vote to adopt township or- 
ganization 33 

One-fifth legal votes can petition to dis- 
continue township organization 40' 






£22 



INDEX. 



Page 
"Voters— Continued. 
One-fourth necessary on petition to unite 

contiguous towns 48 

Votes at, how canvassed 48 

Fifteen, to call special town meeting 69 

General election laws to apply; to voters 
under township act as far as applica- 
ble 76 

No registration required at town election 75 
Questions decided by a majority voting 

at meeting for business 82 

When result questioned— division of to 

be made 82 

Qualification to vote at town election... 83 
Upon petition of twenty continuance of 

support of poor, etc., submitted 339 

Pauper not deemed voter where poor 

house situated 340 

Qualifications of 481 

Affidavit or form of v „ 483 

Warrants. 

County clerk add to collector's book 400 

What collector's warrant shall direct 400 

To be annexed to collector's book 402 

Authorize collector to levy and distrain.. 402 
Direct how to pay over tax 402 



Page 

"Warrants— Continued. 
Attached to lists furnished deputy col- 
lectors 407 

Warrants of Appointment. 

Form of appointment to town office 89 

Filed in office of town clerk 90 

"Watering Places. 
Electors power to authorize and regulate 58 
Commissioners of highways power to 
construct ~ 123 

Wells. 
Electors power to authorize and regulate 58 
Commissioners of highways power to dig 123 

"Windbreaks. See Fences. 

Witness. 

Inhabitants of town competent 65 

Form of oath in drainage case 245 

Affidavit of for voter 483 

Oath by who administered 483 



A F ' 1 9 - 






°o 


















"J 




°o 











*-*o* 











/• 



^ A^' 

«** o 

4 O 






